Vol. XXXIX, No. 2 ISSN-0970-8693 FEBRUARY 2019 Rs. 20 Freedom of Speech and Human Expression Freedom of Speech and Human Expression Sanjay Parikh* - Sanjay Parikh (1) Freedom of speech and expression is the most fundamental and most precious among all other human rights, on realization of which alone the other rights become meaningful. UN Human Rights Committee (in Nayantara Sahgal's Speech She Wasn't General Comment no. 34 on Article 19: Freedom of opinion and Allowed to Deliver (3); Right to Development expression) had said that: “Freedom of expression is a necessary an Inalienable Human Right - Ravi Kiran Jain condition for the realization of the principles of transparency and (7); Indian Society, Politicians still Hindering accountability that are, in turn, essential for the promotion and protection Women's Empowerment - Pushkar Raj (11); of human rights.” And that:” The freedoms of opinion and expression form Bulandshahar: Unravelling the Anatomy of A a basis for the full enjoyment of a wide range of other human rights.” It is however, interesting to know the development of this most important Riot - Ram Puniyani (13); PUCL Delhi Sharing a right without which human freedom has no meaning. Despite Benjamin poem - We live in Democracy (14); Franklin expressing his views as back as in 1731 in his paper “Apology for Surveillance State is a Reality Now - V. Printers” that “printers are educated in the belief that when men differ in Venkatesan (14); Fact Finding Report on opinion, both sides ought equally to have the advantage of being heard by Violence unleashed on workers (17). the public…” and Franklin D. Roosevelt acknowledging that freedom of speech is the first among four essential human freedoms followed by freedom of religion, freedom from want and freedom from fear, when the Announcement of the PUCL National United States Constitution was written, surprisingly, it contained no th st nd provision concerning the freedom of speech. It came subsequently (1791) Convention on 28 Feb., 1 & 2 March at in the form of the “Bill of Rights” where it was said in no uncertain terms that Bengaluru (1); Press Statement: PUCL Congress should make no law abridging the freedom of speech or of the Welcomes Notice Issued by SC on press. But only a few years later, the Sedition Act was passed (in 1798) Continuing Prosecutions u/s 66A IT Act (7); under which journalists, printers and editors were detained only on the PUCL Maharashtra: Press Statement in charge of criticizing the public figures. Realizing the draconian nature of Solidarity with protesting BEST Workers (11); the Sedition Act and that it runs totally contrary to the constitutional pledge, Dr. Nasar Firdausi Passed Away (12); PUCL Sedition Act was put an end to and at that juncture Thomas Jefferson Rajasthan: Letter to DG – Prisons, GOR (12); made the following famous statement: “The basis of our governments PUCL Press Statement: Going Beyond being the opinion of the people, the very first object should be to keep that Te l e p h o n e t a p p i n g t o E l e c t r o n i c right; and were it left to me to decide whether we should have a Communication Surveillance (20) government without newspapers or newspapers without government, I should not hesitate to prefer the latter. But I should mean that every man should receive these papers and be capable of reading them.” Annual Subscription: PUCL Bulletin (w.e.f. January 01, 2017) INDIA Contd. on page no. 2 PUCL Members Rs. 200 Non-Members Rs. 240 Announcement of the PUCL National Convention on Libraries, Institutions Rs. 300 th st nd OVERSEAS 28 February, 1 & 2 March at Bengaluru PUCL Members US$50 The 15th PUCL National Convention is to be held in Bengaluru on 28th Non-Members US$100 st nd Libraries, Institutions US$120 February, 1 and 2 March, 2019 (Thrusday, Friday & Saturday). The Venue: Indian Social Institute (ISI) Campus, Benson Town, Bengaluru, Karnataka - 560046. For more details, please contact to Prof. YJ Rajendra, President, PUCL Karnataka. Mobile: 9449011530; Email: . All PUCL Members are invited to attend the Convention. Ravi Kiran Jain, President; V. Suresh, General Secretary, PUCL National q 441

PUCL BULLETIN, FEBRUARY 2019 1 Contd. from page no. 1 in public interest or oppressive or greed, money and endless desires. In our Constitution Art 19(1)(a) shielding the corrupt. Recently, in Like caged parrot (expression used recognized the freedom of speech the famous case relating to the by the Supreme Court) you repeat and expression, which has been Right to Privacy, a Constitution whatever your boss says. expanded by the Supreme Court to Bench of the Supreme Court said The importance of freedom of include the right to impart that the right to question, to expression and how it is connected information, to receive information, scrutinize and to dissent which with ones inner being, was realized including the freedom of press. In enables citizens to scrutinize the when people who suffered solitary one of the judgments (LIC vs actions of the Government, is a part confinement, narrated their Manubhai) the Supreme Court said: of the constitutional rights; that experiences: they said that it was “Freedom to air one's views is the power to scrutinize and reason not so much pain of body but the lifeline of any democratic institution enables the citizens of a democratic excruciating and unbearable pain of and any attempt to stifle, suffocate polity to make informed decisions being isolated and not being able to or gag this right would sound a on the basic issues which govern communicate with others that kills death-knell to democracy and would their rights and it is this scrutiny the soul. Fear creates that isolation. help usher in autocracy or which ensures that socio-economic In a society where communication dictatorship.” benefits actually reach the of free ideas is constantly A free Press creates an atmosphere underprivileged for whom they are threatened with consequences, where criticism allows people to meant. The Court gave an example m i n d s t u r n i n t o a p r i s o n , evaluate the governmental actions. by quoting Prof. Amartya Sen, as to continuously hounded by fear, It hardly matters whether it is for or how restrictions in reporting and suspicion and surveillance. A against. Press gives a platform to criticism during the Bengal Famine society without the basic human the people to exercise their right of of 1943, made situations worse. right of freedom of speech and free speech – to express their views. Prof. Sen said that the calamity expression suffers the collective Press creates the democratic became worse not only because of mental death and then democracy space, which is needed for “lack of democracy in colonial India becomes a farce. safeguarding constitutional rights but also by severe restrictions on Tom Bethell, Washington editor of a n d v a l u e s o r r a t h e r t h e reporting and criticism imposed on Harper's magazine, in one of his c o n s t i t u t i o n a l m o r a l i t y - a n the Indian press, and the voluntary articles on the freedom of speech expression used recently by the practice of “silence” on the famine and expression discussed various Supreme Court. This is why Press is that the British-owned media chose threats which freedom of press called the fourth pillar. But what to follow.” suffers from. He said: “The most happens when an atmosphere of This right to speak emanates not serious threat to the freedom of the fear is created. It divides the press; only from the Constitution but press, however, comes not from those who are weak and ambitious because as human being we are well-intended but misapplied succumb to the pressure. Those responsible to react in a given government regulation, but from who stand by the values, faith and situation, which is unjust and unfair patriotic citizens who do not the responsibility people have put to an individual or to the society. It is particularly like it when the press on them, suffer. They face coercive of fundamental importance for an succeeds, as it does at times, in actions, face defamation suits, individual, that he is able to convey, making the country look badly criminal actions including sedition. without fear of any authority or governed. When this happens, it is They are physically assaulted and ensuing arbitrary actions, his curiously enough, the right-wing even killed. We are unfortunately feelings – his reactions. His and conservative elements in faced with this situation today. Fali expression creates him, makes him, society that most often clamor for a Nariman has rightly put it: “Today nurtures him, give his physical muzzle on the press …” the basic question is not of freedom appearance a shape, his mind a Somewhat similar reactions are of speech but freedom after dimension and his spirit - a hope to visible today in our society where speech.” The atmosphere impinges rise. His expression can come out under different nomenclatures – a on the very Rule of Law, which is as a poem, as a story, as a painting fanatic cult has taken dangerous supposed to protect the people or as a powerful dissent against proportions. It has no fear of law and without any discrimination – to act in injustice and oppression. He wants order. They firmly believe that the absolute good faith. others to know him through his government will not act against Freedoms to express one's views expression, without which 'He' does them because they represent a also include the right of dissent. No not exist. Freedom of expression particular ideology, which allows democracy in the world can survive gives him the existential freedom – lynching,and it is not a crime, as per without people expressing different to be: that 'he' exists. This is most their belief. They think that for sins opinions, even strongly critical, in i m p o r t a n t a s s e t o f h u m a n committed by some, they have been the sphere of governance by the existence. One should be able to endowed with a right to punish. State. People have a right to criticise speak up the truth without any fear is Journalists are paying the price of the government policies and actions most crucial, otherwise it becomes a being brave and truthful. Press and as not being in accordance with the vegetative existence where mind publications are facing legal actions Constitution or the same not being becomes captive of ambitions, for being critical of the governmental

PUCL BULLETIN, FEBRUARY 2019 2 actions. Still we believe of surviving democratic form of Government Press and in the name of the in a democracy governed by the in the country on proper lines. In future of Indian journalism, I Rule of Law! these circumstances any step appeal to this House always to Shri Deshbandhu Gupta, one of the taken to weaken the Press will bear in mind that newspapers as members of the Constituent be calculated to harm the such to deserve a distinctive Assembly, had said then, which is democratic form of Government, treatment. Newspapers are as more relevant now: nay, the freedom of the people essential for the Government, as “We should not ignore the fact will be jeopardized as has been for the good of the country and that after all newspapers have a rightly pointed out by the U.S. we must always regard them as mission to perform and that they Supreme Court Judges to whose such.” q are essential for the very memorable judgment reference existence of a democratic form was made the other day. of Government. They are According to them "Fettering the *Sanjay Parikh, Vice-President, essential for educating the press is fettering ourselves". So, PUCL National & Senior Advocate, Supreme Court. electorate and for running the in the name of the freedom of the

Press Statement: 07th January 2019 PUCL Welcomes Notice Issued by SC on Continuing Prosecutions u/s 66A IT Act despite the provision having been struck down by SC as Unconstitutional in 2015

In 2013, PUCL had filed a Writ that Section 66A cases were Union Government to respond Petition in the Supreme Court over continuing and fresh criminal cases within 4 weeks. the constitutionality of Section 66A were being registered. This PUCL is committed to protection of of the Information Technology Act. violated not only the Supreme freedom of speech and expression By a landmark judgement in C o u r t j u d g e m e n t b u t t h e and civil liberties and will continue `Shreya Singhal v. Union of fundamental right to freedom of to follow this matter and other India', (2015) this provision which speech and expression and related issues. PUCL was criminalised online speech was personal liberty of the individuals. represented by Mr. Sanjay Parikh declared unconstitutional by the Concerned by this continuing Adv and assisted by a legal team. Supreme Court. A core problem abuse of an unconstitutional and This step of PUCL will be helpful in with the provision, as noticed by the non-existent criminal provision, several other areas where in spite Hon'ble Supreme Court, was its PUCL filed an application in which of declaration of law by Supreme vagueness which was leading to prayers were sought to ensure that Court, it is not followed, which arbitrary and indiscriminate arrests. the abuse must stop, existing cases results in breach of fundamental Unfortunately, despite the Court's of Section 66A cease and fresh rights of the people. judgement of March, 2015 striking ones are not registered. Finding Ravi Kiran Jain, National down sec. 66A of the IT Act as void merit at the threshold in the President, PUCL; V. Suresh, and unconstitutional, a study of application, the Hon'ble Supreme National General Secretary, PUCL legal databases by the Internet Court today i.e., Jan. 7, 2019 q Freedom Foundation (IFF) found issued notice and directed the

Nayantara Sahgal's Speech She Wasn't Allowed to Deliver Nayantara Sahgal (91) is a renowned Indian writer, and winner of the 1986 Sahitya Akademi Award. She returned her award in October 2015, to protest the “growing intolerance” in the country and silence from institutions like the Sahitya Akademi. She was to inaugurate the 92nd Marathi Sahitya Sammelan on January 11, 2019, but the organisers withdrew the invitation after threats from a political outfit. This is the full text of her speech she was going to deliver. This is an emotional moment for me creative enterprise known as Indian Rajatarangini. Rajatarangini is the and I feel privileged to be here with literature. 12th century history of the kings of you. I feel I am standing in the It is also an emotional moment for me Kashmir by Kalhana, and it had a shadow of great Maharashtrians - because of my own connection with special fascination for my father Mahadev Govind Ranade who Maharashtra through my father, because his two great loves were founded this sammelan, and whose Ranjit Sitaram Pandit. I would like to Sanskrit and Kashmir. He worked on name is part of the modern history of tell you a little about him. He was a this translation during two of his jail our country, and the distinguished Sanskrit scholar from a family of terms during British rule and Marathi writers who have chaired its distinguished Sanskrit scholars and dedicated it to his Kashmiri fatherin- conventions, and all the writers who he translated three Sanskrit classics law, Pandit Motilal Nehru. His have taken part in its sessions and into English: Mudra Rakshasa, brother-in-law, Jawaharlal Nehru, whose writing has enriched the great Kalidas's Ritusamhara, and wrote an introduction to this work

PUCL BULLETIN, FEBRUARY 2019 3 when it was published. I am deeply men and women who fought for affirmed a life of liberty, equality, and grateful to Dr Aruna Dhere and Shri freedom. My parents were among fraternity for all Indians. This high Prashant Talnikar for their great many thousands of Indians-known ideal was inspired by Ambedkar, who labour of translating this massive and unknown, young and old-who was the chief architect of the history into my father's—and their committed their lives to that great c o n s t i t u t i o n , a n d a g r e a t own—native tongue, Marathi. I know fight and suffered all kinds of Maharashtrian whose insistence that that nothing would have made him hardship because they had a passion all human beings are equal, started a happier. for freedom. I want to ask you, do we revolution against caste. That high Both my parents took part in the have that same passion for freedom ideal has now been thrown aside. national movement for freedom today? Are we worthy of those men The minorities, and those who don't under Mahatma Gandhi. My mother, and women who have gone before support the Hindu rashtra agenda, Vijaya Lakshmi Pandit, was us, some of whom died fighting so have become targets for fanatics who imprisoned three times and my father that future Indians could live in roam the streets. four times. During his fourth freedom? We have recently seen five citizens imprisonment he fell seriously ill in I am asking this question because falsely charged with conspiracy and the terrible conditions and our freedoms are in danger. The arrested on grounds of sedition. environment of Bareilly jail, and was dangers to them are so much on my These are men and women who have given no medical treatment and my mind that when I was thinking about spent years of their lives working for mother was not informed how very ill what I should say to you, I knew I had tribal rights and forest rights, and for he was. Yet he had refused to ask for to talk about all that is happening in justice for the marginalised. Christian his release. India today, because it is affecting churches have been vandalised and When she was finally informed of his every side of our lives: what we eat, Christians are feeling insecure. condition she was allowed to have a whom we marry, what we think and Lynch mobs are openly attacking and 20-minute interview with him. It took what we write, and, of course, how killing Muslims on invented rumours place, according to the rule, in the we worship. that they were killing cows and eating office of the jail superintendent and Today we have a situation where beef. We are watching all this under his watchful eye, which gave a diversity, and opposition to the ruling lawlessness on TV. political prisoner no privacy with his ideology, are under fierce attack. In Uttar Pradesh, these mob attacks visitor. It shocked my mother to see Diversity is the very meaning of our on the cow pretext have become him brought in on a stretcher. His civilisation. We have old literature in common, while the authorities stand head had been shaved and his body many different languages. We eat by and look on. When terrorism of this was emaciated. different foods, we dress differently, kind becomes official, as it has in She almost broke down at the sight of we have different festivals, and we Uttar Pradesh, where can we look for him but somehow she held back her f o l l o w d i f f e r e n t r e l i g i o n s . justice? Mob violence backed by the tears because she knew he would not Inclusiveness has been our way of state goes on in many places on want her to cry in front of the jailer. He life, and this ancient multi-cultural defenceless people, and the guilty told her why he wouldn't ask for the civilisation whose name is India is a have not been convicted. In some favour of being released. He said “I most remarkable achievement that cases, their victims have been have fought with the lions, Gandhi no other country has known. Today it charged with the crimes instead, and and Nehru. Do you want me to is threatened by a policy to wipe out in some cases, the criminals have behave like a jackal now? our religious and cultural differences been congratulated. The human cost She knew she couldn't change his and force us into a single religious of this tragic situation is that it is a mind so she controlled herself and and cultural identity. time of fear and grief for many Indians sat near the stretcher and held his At one stroke this policy wipes out the who no longer feel safe living and hand, and gave him news of home constitutional rights of millions of our worshipping as they have always and the children, and what was countrymen and women who are not done, and have a right to do. The poor growing in the garden he loved. Hindus and makes invaders, and helpless among them some of When the government released him outsiders and enemies of them. At whom have been driven out of their at last, it was only to die about three Independence, our founding fathers villages and their homes and jobs - weeks later. rejected a religious identity and had are living without work, or help, or M a n y y e a r s l a t e r , a f t e r the wisdom to declare India a secular hope, or future. independence, my mother was democratic republic, not because I write novels and my material for India's High Commissioner in Britain they were against religion but story-telling has been political. As we and sat next to Prime Minister because they understood that in our writers know, we do not choose our Winston Churchill at a lunch, and he deeply religious country of many material. We make stories out of the said to her, “We killed your husband, religions, only a secular state would material and atmosphere around us, didn't we?” It was an admission that provide the overall umbrella of and because I grew up during the took her by surprise. neutrality under which every Indian years of the fight for freedom, the Most of you were not born in the would have the right to live and values of that time and of the nation it 1940s, and you grew up in an worship according to his or her faith. created have been the stuff of my independent country, so I have The Constituent Assembly which fiction and non-fiction. I have thought shared this personal story with you to took this decision was made up of a of my novels as being about the show you the courage and discipline majority of Hindus, yet they drew up a making of modern India. But because of those times, and the spirit of the Constitution whose preamble my last two novels are about the

PUCL BULLETIN, FEBRUARY 2019 4 times we are now living in, they are course, nonsense. A population of It is being replaced by myths and about the un-making of modern India. one billion people cannot be made to legends, and a medieval frame of As we are writers, let us look at what think alike. Every community has its mind. is happening to our fellow writers and own views and its own sensitivities on We have been justly proud of the key artists in this political atmosphere. various issues. But sentiments institutions we have built up since We are seeing that the questioning cannot decide what is right or wrong. independence, but they, too, have mind, the creative imagination, and In some cases it is even our duty to been brought under state control - freedom of expression have no place hurt sentiments. If we had been whether they concern art and in the present political climate, and forbidden to hurt sentiments, we literature, or history, or technology, or where there is no respect for freedom would still be burning widows, and no science, information, education and of thought or for democratic rights, reform of any kind would have taken culture. Our public universities, our writing becomes a risky activity. place. museums and Akademies are no This has always been the case in Many sentiments were hurt when the longer independent institutions. The authoritarian regimes all over the Hindu Code Bill was being debated Nehru Memorial Museum and Library world where art is kept under state and sadhus threw stones at in Delhi was an early example of the control and writers face punishment Parliament house. But if the Bill had damage that is being done to our and persecution if they step out of not been passed, Hindu women institutions, and Jawaharlal Nehru line. would have had no rights. University is an ongoing target of Take the example of a young poet Historians are feeling the heat now Hindutva hatred. As a Hindu and a called Josef Brodsky in Stalin's that Indian history has been brought believer in the great enlightened Soviet Union. Brodsky is arrested under state control. In some States, inheritance known as Sanatan and his interrogator waves a paper at large chunks of the past have been Dharma, I cannot accept Hindutva. him and says, “Do you call yourself a distorted or done away with In this war that has been declared on poet? Do you call this a poem? It is altogether. And this is the work of diversity, dissent and debate, those not a poem if it makes no material Hindutva minds who have been who care about freedom have not contribution to the Soviet Union.” And specially chosen to rewrite it. If I were stayed silent. There are marches and he throws Brodsky into jail. Years to invent a dialogue between an rallies against the destruction of our later, Josef Brodsky wins the Nobel Indian historian and one of these re- fundamental rights. There are Prize for Literature. Another famous writers of Indian history, it would go protests by retired civil servants, by Russsian case is of Solzhenitsyn, something like this. The historian students and academics, lawyers, who was condemned to hard labour says to the re-writer: 'Akbar won the historians and scientists, Dalits and in Siberia for many years for battle of Haldighati. But in this book, Adivasis, and the farmers' huge criticising the government, and who you are saying that he lost it. How demand for their rights. The large also won the Nobel Prize for come?' The re-writer replies, 'He lost numbers of farmers' suicides in this Literature. it because I have decided that he lost area show the desperate situation And now the same ignorance about it. History is what we say it is.' Some they are no longer unable to face. art and literature is in action here, and of these rewritten textbooks have The Bhim Army, named after Dr. writers are facing the anger of wiped out the whole Mughal Empire, Ambedkar, is making its voice heard, ignorant criticism, and much worse. and not content with wiping out the and we are reminded that it has an Three eminent Maharashtrian past, all remaining reminders of it are inheritance of dramatic revolt, when rationalists, Narendra Dabholkar, being demolished. Ambedkar and E.V. Ramasamy Govind Pansare and M.M. Kalburgi, The Babri Masjid has been knocked Periyar publicly burned the have been shot dead for rejecting down, and Mughal and Muslim Manusmriti in the 1920s for the superstition in favour of reason, and names of towns and roads are being insulting and objectionable laws it Gauri Lankesh of Bengaluru for her changed. Some textbooks have laid down for Dalits in the caste independent views and her censored all mention of Nehru, system, condemning them to an opposition to Hindutva. Others have whose governments laid the inferior status. The singer, T.M. been threatened with death and foundation of modern India, and Krishna, and the historian, forbidden to write. We are told, 'Don't Mahatma Gandhi was of course Ramchandra Guha, are among those publish your book or we will burn it. murdered by this mentality in 1948 for who have made strong individual Don't exhibit your paintings or we will the blasphemy of the mantra he gave protests. Krishna's concert was destroy your exhibition.' Filmmakers us: Ishvar Allah tere nam; Sab ko cancelled and Ram Guha received a are told, 'Change the dialogue in this sammati de Bhagvan. Gandhi's non- death threat. Recently, a great actor, scene and cut out the next scene or violence is seen as emasculating Naseeruddin Shah, has spoken out we will not let your film be shown, and Indians and making cowards of them. against the war on Islam and how he if you show it we will attack the Personally, I think that nothing fears for his children. cinema hall. Don't do anything to hurt needed greater heroism than the way What can writers do in this situation? our sentiments'. unarmed Indians confronted the The answer is: we can write. In other words, they are saying: do as armed might of an empire. One of my Powerful fiction has been the result of you are told, or your life and your art novels called Lesser Breeds is my writers stepping into controversy and are not safe. But the creative tribute to that unique time. taking sides, but not as polemics or imagination cannot take orders from With all that is being wiped out, so is propaganda. Their plays and poems the state, or from the mob. And the the scientific frame of mind that we and novels have been about people, question of hurting sentiments is, of have cultivated since independence. not ideas, and they have been written

PUCL BULLETIN, FEBRUARY 2019 5 by authors who were deeply engaged our Sahitya Akademi Awards over the Maharashtrian women writers, with the times they were living in, and murder of an Awardwinning writer, Dr because of the formidable obstacles some are still living in. Dabholkar, which the Akademi took that women have to overcome when Writers don't live in ivory towers. no notice of. But after the lynching of they put their life experiences into Through our writing, we take sides the poor blacksmith, Mohammed words on a page. They run the risk of between good and evil, right and Akhlaq, in Dadri village outside Delhi, offending husband, family, and wrong. Great literature worldwide by our movement has grown and s o c i e t y, a n d s u f f e r i n g t h e writers of many nationalities has widened to cover other issues consequences. May their courage done this, and this is the literature concerning attacks on democracy and their creative energy go from that has touched chords in and human rights. strength to strength. succeeding generations and stays I have mentioned the writing of I want to thank my hosts for giving me alive. We show where we stand by foreign writers. It has left its mark on this opportunity to speak to you, and I the subjects we choose, the stories my mind because I have been able to have spoken from the heart because we write, and the way we write them. read some of it in translation. What of the crossroads our country is at. Whether we are writing about our about Indian writing in our many Which way we go—towards freedom grandmother's cooking, or the rain on languages? It is a tragedy that we or away from it—will depend, among the roof, or describing the body of our cannot read each other for lack of other things, on what we write, and beloved, every word we write makes translation. Though our music and our refusal to be bullied into silence. it clear where we stand. Writing, like dance and theatre and films bring us In memory of the Indians who have all forms of creative art, is a powerful together, our literature keeps us been murdered, in support of all form of political activism, and it is a apart, and we cannot know each those who are upholding the right to means of revolt. That is why dictators other until we can read each other. I dissent, and of the dissenters who are so afraid of it and take steps to can only hope that publishers will fill live in fear and uncertainty, but still control it. this gap and that Indian literature will speak their minds, let us choose A writers' protest started as an 'Award become available not only to us but freedom. Wapasi' movement three years ago, across the world. Thank you for listening to me. when about a hundred of us returned I have to pay a special tribute to Published In JANATA, January 13, 2019 q

PUCL Maharashtra: Press statement on 09.01.2019 *PUCL Maharashtra Statement in Solidarity with protesting BEST Workers* PUCL Maharashtra expresses budget with the principal budget of h e a v i l y i n c a r o r i e n t e d shock and dismay at reports that the BMC, in addition to pressing for i n f r a s t r u c t u r e , b u t h a s the BMC and BEST administration negotiations with the management systematically starved BEST and have chosen to invoke draconian o n w a g e s , r e s u m p t i o n o f refused to invest in bus based provisions of the Maharashtra appointments on compassionate public transport (modernization of Essential Services Maintenance grounds and bonus parity with BMS buses, integration between modes, Act (MESMA) against striking employees. The BEST Kruti Samiti, dedicated bus lanes, bus depot and BEST employees, instead of taking which is the umbrella body of all the bus stops improvement, etc.) which steps to respond to their demands B E S T e m p l o y e e s ' u n i o n s has led to the decline of the service and alleviate their grievances at the spearheading the strike, has also and its ridership. By reducing BEST earliest. e x p r e s s e d f e a r s t h a t t h e services and scrapping routes the PUCL Maharashtra learns that the administration is bringing in a d m i n i s t r a t i o n i s c a u s i n g BEST administration has issued privatization through the back door harassment to commuters and eviction notices to striking BEST and making a vital public transport residents of Mumbai. employees and is already trying to s e r v i c e u n a f f o r d a b l e a n d It is a criminal shame that the remove them and their families unsustainable. demands of the protesting BEST from their homes, on the second PUCL Maharashtra is concerned at workers have been met with this day of the indefinite strike called by the systematic dismantling of public kind of penalization and repression BEST workers' unions to press for transport in Mumbai and the from the administration on the one their demands. destruction of the BEST, which was hand and indifference from the Workers and their families cannot once Mumbai's pride. Alongside, state government on the other. The be penalised in this inhuman several mega projects have been BEST management has no right to manner for exercising their right to initiated throughout Maharashtra declare the workers' strike “illegal” protest and to strike, to press for without any regard for the when it has done nothing to resolve their legitimate demands. *PUCL environmental damage, the loss of the situation. The situation today is Maharashtra urges the civic livelihood of the fishing community a combined result of the failure of administration to withdraw the of Mumbai and the high cost of the the BEST management to notices forthwith.* multi-crore projects, which will effectively address the grievances The strike has been called to ultimately be borne by all citizens. of the workers which relies on their demand the merger of the BEST The state government has invested labour and further failure of the

PUCL BULLETIN, FEBRUARY 2019 6 state government to push policies urgent concerns of the citizens. government to strengthen public to examine ways to strengthen the *In light of this, PUCL Maharashtra transport in Mumbai, instead of public transport system for all urges the BEST management to contributing to its destruction.* citizens, instead of adopting multi immediately initiate talks with the Mihir Desai, Convenor, Ad-Hoc crore projects at the cost of striking workers to redress their Committee, People's Union for Civil addressing the real needs and g r i e v a n c e s a n d t h e s t a t e Liberties (PUCL), Maharashtra q

Right to Development an Inalienable Human Right Ravi Kiran Jain* Declaration on the right to of State Policy in Part IV of the can ensure free and complete Development made by the general Constitution correspond to the fulfilment of the human being. They Assembly on 4th Dec 1986, defines international covenant on Economic, promote and protect an appropriate “Development” as “ comprehensive, S o c i a l a n d C u l t u r a l R i g h t s social and economic order in economic, social, cultural and (ICESCR).The core value of our democracy for development. The political process, which aims at the Constitutional philosophy indicated State should provide facilities and constant improvement of the well in the Preamble to the Constitution of opportunities to ensure development being of entire population and of all India, is “Dignity of the individual”. It is and to eliminate all obstacles to individuals on the basis of their obvious that, dignity of the individual development by appropriate active, free and meaningful being a core value, and the aim of a economic and social reforms so as to participation in development and in welfare state through Human eradicate all social injustice. These the fair distribution of benefits Development being fundamental to principles are imbedded, as stated resulting therefrom”, and then the governance, the essence of earlier, as integral part of our Declaration proceeds to proclaim ; Constitutional Governance is Constitution in the Directive “the right to development is an emphasis on human rights, and that Principles. Therefore, the Directive inalienable Human right by virtue of is our Constitutional philosophy. Principles now stand elevated to which every human person and all The Directive Principles which are inalienable fundamental human peoples are entitled to participate in, fundamental in governance of the rights. Even they are justiciable by contribute to, and enjoy economic, country (Article 37 to 50) require the themselves. Social and economic social, cultural and political state to secure a social order for the democracy is the foundation for development, in which all human promotion of welfare of the people, to stable political democracy. To make rights and fundamental freedom can secure distributive justice and right to them a way of life in the Indian polity, be fully realized. The Vienna development with full dignity, right to law as a social engineer, is to create Declaration and Program of Action work, to education and social just social order, remove the adopted by the World Conference on security, provision for just and inequalities in social and economic Human Rights on 25th June 1993, humane conditions of work, provision life and socio-economic disabilities recommends: for free and compulsory education for with which people are languishing: “The World Conference on c h i l d r e n , p r o m o t i o n o f t h e and to require positive opportunities Human Rights reaffirms the right educational and economic interests and facilities as individuals and to development, as established of the weaker sections, to raise the groups of persons for development of in the Declaration on the Right to level of nutrition and standards of human personality in our civilised Development, as an universal living and to improve public health, democratic set up so that every and inalienable right and an and protection of environment, individual would strive constantly to integral part of fundamental ecology and wild life etc. rise to higher levels. Dr. Ambedkar, in human rights. As stated in the The Supreme court of India in Air his closing speech in the Constituent Declaration on the right to India Statutory Corporation vs United Assembly on 25/11/1949, had lucidly development the human person Labour Union (AIR 1997 SC 645) elucidated the meaning of social and is the central subject of held as follows: political democracy. He stated that it development.” The Directive Principles in our means a way of life which recognises Human Rights are those rights which Constitution are fore-runners of the liberty, equality and fraternity as the are inherent in human existence and U.N.O. Convention on Right to principles of life. They are not to be belong to all human persons Development as inalienable human treated as separate items in a trinity. irrespective of gender, race, caste right and every person and all people They form an integral union. One ethnicity, religion etc. Human rights are entitled to participate in, cannot divorce from the other; are indivisible, interdependent and contribute to and enjoy economic, otherwise it would defeat the very inter-related having a clear linkage social cultural and political purpose of democracy. Without with human development; and both development in which all human equality, liberty would produce share a common vision with a human rights, fundamental freedoms would supremacy of the few over the many; purpose. The Constitution of India be fully realised. It is the equality without liberty would kill the was drafted nearly at the same time responsibility of the State as well as initiative to improve the individual's as the UDHR and contains similar t h e i n d i v i d u a l s , s i n g l y a n d excellence, political equality without provisions. Part III of the Constitution collectively, for the development socio-economic equality would run containing the Fundamental Rights taking into account the need fuller the risk of democratic institutions to corresponds to the international responsibility for the human rights suffer a set back. Therefore, for covenant on Civil and Political Rights fundamental freedoms as well as the establishment of just social order in (ICCPR), and the Directive Principles duties to the community which alone which social and economic

PUCL BULLETIN, FEBRUARY 2019 7 democracy would be a way of life State Legislatures were held in 1952 nation's requirements; inequalities in income should be where after the first cabinet of 2. formulate a Plan for the most removed and every endeavour be ministers headed by Jawahar Lal e ff e c t i v e a n d b a l a n c e d made to eliminate inequalities in Nehru came into being and then the utilisation of the country's status through the rule of law. other constitution functionaries like resources; The Constitution of India has Finance Commission of India, 3. on a determination of guaranteed certain fundamental Comptroller and Auditor General of priorities, define the stages in rights for the citizens of India, India were appointed by the which the plan should be which are enumerated in Part III President of India on the advice of the carried out and propose the of the Constitution. In Part IV of Council of Ministers. allocation of resources for the the Constitution, there is a Within seven weeks of the adoption due completion of each stage; direction to ensure, that 'the of the Constitution the Govt. of India 4. indicate the factors which ownership and control of set up, Planning Commission of India are tending to retard economic material resources of the by a Cabinet resolution dtd. 15th development, and determine community are so distributed as March 1950. This resolution the conditions which, in view for best to sub serve the common s p e c i f i c a l l y r e f e r s t o t h e the current social and political good ; and that the operation of Fundamental Rights and the situation, should be established the economic system does not Directive Principle of State Policy and for the successful execution of result in the concentration of proceeds as follows: the Plan; wealth and means of production “3.The Constitution of India has 5. determine the nature of the to the common detriment and the guaranteed certain fundamental machinery which will be state shall strive to promote the rights to the citizens of India and necessary for securing the welfare of the people by securing enunciates certain Directive successful implementation of and protecting as effectively as it Principles of State Policy, in each stage of the Plan in all its may a social order in which particular, that the State shall strive to aspects; justice, social, economic and promote the welfare of the people by 6. appraise from time to time political, shall inform all the securing and protecting as effectively the progress achieved in the institutions of the national life' . as it may a social order in which execution of each stage of the These Directives are not justice, social, economic and Plan and recommend the “enforceable by any court, the political, shall inform all the adjustments of policy and principles therein laid are institutions of the National life and measures that such appraisal nevertheless fundamental in the shall direct its policy towards show to be necessary; and governance of the country'. securing, amongst other things:- 7. make such interim or State, which has to enforce (a) that the citizens, men and ancillary recommendations as fundamental rights in part III and women, equally, have the appear to it to be appropriate who has to govern on the right to an adequate means either for facilitating the fundamental principles in Part IV of livelihood . discharge of the duties has been defined in Article 12 (b) that the ownership and assigned to it; or on a and 36 as to include “The govt. control of the material consideration of the prevailing and Parliament of India and the resources of the community economic programmes; or on govt. and legislature of each of are so distributed as best to examination of such specific the states and all local or other subserve the common good; problems as may be referred to authorities within the territory of and it for advice by Central or State India or under the control of (c) that the operation of the Governments. Govt. of India”. economic system does not 5. The Planning Commission will be The Constitution of India was result in the concentration of composed of the following: adopted by the Constituent Assembly wealth and means of Chairman: Shri Jawahar Lal Nehru; on 26th November 1949 and Hon'ble production to the common Deputy chairman - Shri Gulzarilal members appended their signature detriment Nanda; Members : Shri V.T. on 24 t h January 1950. The “4. Having regard to these rights and Krishnamachari, Shri Chintaman Constitution of India came into force in furtherance of these principles as Deshmukh, Shri G.L. Mehta, Shri on 26th Jan 1950. On that day the well as of the declared objective of R.K. Patil; Secretary: Shri N.R. Pillai; A s s e m b l y c e a s e d t o e x i s t the government to promote a rapid Deputy Secretary: Shri Tarlok transforming itself in to Provisional rise in the standard of living of the Singh. Parliament until a new Parliament people by efficient exploitation of the 6. The Planning Commission will was constituted in 1952, and resources of the country, increasing make recommendations to the Representation of People's Act 1951 production, and offering employment C a b i n e t . I n f r a m i n g i t s was enacted in accordance with the opportunities to all in the service of recommendations, the Commission requirement of Article 324 to 329 of the community. will act in close understanding and the Constitution so that a set of laws The Planning Commission will: consultation with the Ministries of the exist for holding the election of 1. make an assessment of the C e n t r a l G o v e r n m e n t a n d P a r l i a m e n t a n d t h e S t a t e material, capital and human Governments of the States. The Legislatures, electing a President of resources of the country, responsibility for taking and India who would appoint a Prime including technical personnel, implementing decisions will rest with Minister and other ministers on the and investigate the possibilities t h e C e n t r a l a n d t h e S t a t e recommendation of Prime Minister of augmenting such of these Governments. The Government of and so on. The first elections to resources as are found to be India feel confident that the States constitute the Parliament and the deficient in relation to the will give the fullest, measure of help

PUCL BULLETIN, FEBRUARY 2019 8 to the Commission, so as to ensure great economic and social disparity contractors, middlemen, traders the maximum coordination in policy and deprivation of the basic rights like and the greedy sections of the and unity in effort. education, health, right to work etc larger society intent on grabbing 7. The work of the Planning and only brought disaster. In their resources and violating Commission will affect decisively the `Nandini Sunder vs State of their dignity." [paras 1.18.1 and future welfare of the people in every Chhattisgarh', 2011 SCC (7) 547 1.18.2, emphasis supplied] sphere of national life. Its success will examined the working of the 4. It is also a well known fact that depend on the extent to which it Planning Commission of India and Government reports understate, in enlists the association and the development paradigm pursued staid prose, the actuality of cooperation of the people at all by it as follows : circumstances. That an expert body levels. The Government of India, That violent agitator politics, and constituted by the Planning therefore, earnestly hope that in armed rebellion in many pockets Commission of India, Government of carrying out its task the Commission of India have intimate linkages to India, uses the word "rapacious", will receive the maximum support socio-economic circumstances, connoting predation for satisfaction and goodwill from all interests and, in endemic inequalities, and a of inordinate greed, and subsistence particular, from industry and labour. corrupt social and state order by capture of living prey, is revelatory 8. The headquarters of the that preys on such inequalities of the degree of human suffering that Commission will be at New Delhi”. has been well recognized. In fact is being visited on vast sections of our The planning commission was set up the Union of India has been fellow citizens. It can only be to carry out the Directive Principles in repeatedly warned of the concluded that the expert body, in the terms of reference dated. 15th linkages. In a recent report titled characterizing the state of existence March 1950 and it was required to "Development Challenges in of large numbers of our fellow make an assessment of material, Extremist Affected Areas"4, an citizens, in large tracts of India, as capital and human resources of expert group constituted by the "sub- human," is clearly indicating country, including technical Planning Commission of India that such an existence is not merely personnel, to formulate a plan for the makes the following concluding on account of pre-existing conditions most effective and of the country's observations: of significant material deprivation, but resources, and determine the nature "The development paradigm also that significant facets that are of machinery which will be necessary pursued since independence essential to human dignity have been for securing the successful has aggravated the prevailing systematically denied by the forces implementation of each stage of the d i s c o n t e n t a m o n g t h e a n d m e c h a n i s m s o f t h e Plan in all its aspects. Such a wide marginalized sections of the developmental paradigm unleashed power having been given to the society.... The development by the State. Equally poignantly, and planning commission of India, there paradigm as conceived by policy indeed tragically because the State in was nothing left for the other makers has always imposed on India seems to repeatedly insist on constitutional functionaries to do . For these communities.... causing paying scant attention to such more than 64 years, the governments irreparable damage to these advice, the Expert Group further of this country- Central as well as sections. The benefits of this continues and advises: States have been totally negligent p a r a d i g m h a v e b e e n "This concludes our brief review and have been putting aside the disproportionately cornered by of various disturbing aspects of Directive Principles of State Policy the dominant 3 Ajay K. Mehra the socio-economic context that apparently under a belief that this "Maoism in a globalizing India" in prevails in large parts of India task was entrusted to the planning "The Dark Side of Globalization" today, and that may (and can) commission of India by the resolution eds. Jorge Heine and Ramesh contribute to politics such as that dated 15th Mar 1950 by which it was T h a k u r ( U n i t e d N a t i o n s of the Naxalite movement or set up, and they have only to look University Press, 2011) 4 Report erupt as other forms of violence. towards the planning commission for of an Expert Group to Planning It should be recognized that grants etc. Even the functioning of Commission, Government of there are different kinds of the Parliament and state legislative India (New Delhi, April, 2008) movements, and that calling and assemblies has been largely affected sections at the expense of the treating them generally as by the existence of this extra poor, who have borne most of the unrest, a disruption of law and constitutional body. costs. Development which is order, is little more than a There was no transparency in the insensitive to the needs of these rationale for suppressing them working of the planning commission. communities has inevitably by force. It is necessary to In regard to the constitutional caused displacement and contextualize the tensions in functionaries there are safeguards in reduced them to a sub- human terms of social, economic and the constitution to make them existence. In the case of tribes in political background and bring a c c o u n t a b l e . T h e p l a n n i n g particular it has ended up in back on the agenda the issues of commission was working on the d e s t r o y i n g t h e i r s o c i a l the people - the right to basis of the wide terms of reference organization, cultural identity livelihood, the right to life and a in the resolution dated 15th March and resource base.... which dignified and honourable 1950, and ever since then it has been cumulatively makes them existence. The State itself evolving its own methodology and increasingly vulnerable to should feel committed to the procedure. Planning Commission of exploitation.... The pattern of democratic and human rights India, with the passage of time has d e v e l o p m e n t a n d i t s and humane objectives that are really become a “modern day implementation has increased inscribed in the Preamble, the leviathan”. corrupt practices of a rent Fundamental Rights and The style of functioning of the seeking bureaucracy and Directive Principles of the planning commission gave rise to rapacious exploitation by the Constitution. The State has to PUCL BULLETIN, FEBRUARY 2019 9 adhere strictly to the Rule of Law. and criminalization of politics. There is interference for development of rural Indeed, the State has no other no debate on the core issue of areas as well as urban areas. authority to rule.... It is critical for “Governance” on the Fundamental Now under part IX of the Constitution the Government to recognize Principles contained in Part IV. The Panchayats “shall be constituted in that dissent or expression of i s s u e s l i k e c o r r u p t i o n a n d every state” at the village, dissatisfaction is a positive criminalization of politics is the intermediate and district levels in rural feature of democracy, that unrest outcome of centralized system of areas, and under part IX-A, is often the only thing that governance with a strong bureaucracy Municipalities “Shall be constituted actually puts pressure on the which works as a coordinator between for(a)transitional areas, i.e. to say an government to make things work the various evil forces. The debates of area in transition from rural area to an and for the government to live up administrative reforms and electoral urban area(b)for small urban areas, to its own promises. However, reforms etc. remain confined to the and for larger urban areas, to be the right to protest, even centralized politics. known as Nagar Panchayat, Municipal p e a c e f u l l y, i s o f t e n n o t Now the Constitution decentralizes Council and Municipal Corporation recognized by the authorities, the governance of the States by a four respectively, for urban areas. Kindly and even non-violent agitations tier administration i.e. Central see Article 243-B and 243-Q of the a r e m e t w i t h s e v e r e Government, State Government, Constitution. Now these panchayats repression.... What is surprising Union territories, Municipalities and for rural areas and Municipalities for is not the fact of unrest, but the Panchayats. See Constitution for urban areas are the creation of the failure of the State to draw right Municipalities and Panchayats: Part Constitution and not creation of an conclusions from it. While the IX(Panchayats) and Part IX-A ordinary Statute. These institutions official policy documents (Municipalities) introduced through are Constitutional functionaries. recognize that there is a direct the Constitution 73rd Amendment Act, These institutions can be used to correlation between what is making the peoples participation in the realize the rights contained in termed as extremism and democratic process from grass root Directive Principles of State Policy poverty.... or point to the deep level a reality. Participation means that which is evident by the perusal of the relationship between tribals and people are closely involved in the relevant provisions of the Constitution. forests, or that the tribals suffer economic, social, cultural and political Article 243-G give power to the unduly from displacement, the processes that affect their lives Panchayats in rural areas and Article governments have in practice .People may, in some cases, have 2 4 3 - W g i v e s p o w e r t o t h e treated unrest merely as a law complete and direct control over these Municipalities in urban areas “to and order problem. It is process-in other cases, the control function as institution of Local Self necessary to change this may be partial or indirect. The Government” having powers with mindset and bring about important thing is that people have regard to “the preparations of plans congruence between policy and constant access to decision - making for economic development and implementation. There will be and power. Participation in this sense social justice” as well as the peace, harmony and social is an essential element of human implementations of the schemes for progress only if there is equity, development .Participation of the the economic development and social justice and dignity for everyone." people in governance of the State is justice as may be entrusted to them [paras 1.18.3 and 1.18.4, sine qua non of functional democracy including those in relation to the emphasis supplied] implies people's participation not only m a t t e r s l i s t e d i n E l e v e n t h With this backdrop we proceed to look in decision making about preparation Schedule(for rural areas) and Twelfth at the constitutional scheme emerging of plans for economic development Schedule of the Constitution(for urban after the 73rd and 74th Constitutional and social justice but also in execution areas). Amendment Acts, by which Part IX of such plans. What should be the The Eleventh Schedule and Twelfth and IX A were inserted in the model of development can now be Schedule of the Constitution of India constitution providing for democratic decided by the people themselves. are reproduced below: institutions .Now part IX and IXA of the Disadvantaged sections of the people Eleventh Schedule: 1. Agriculture, Constitution have brought, through in our country have been living in rural including agricultural extension.2. Article 243 to 243 ZG, the Panchayats, as well as urban areas. In the past, it Land improvement, implementation of Zilla Parishads and Municipalities as was always believed that urban areas land reforms, land consolidation and constitutional instrumentalities to would develop automatically whereas soil conservation.3. Minor irrigation, elongate the socio-economic and concerted efforts will have to made to water management and watershed political democracy under the rule of plan the development of rural areas. development.4. Animal husbandry, law. Articles 243G and 243W enjoin Now these two Constitutional dairying and poultry.5. Fisheries.6. preparation of plans for economic amendments show that the path to the Social forestry and farm forestry.7. development and social justice. city runs through villages .It is just not Minor forest produce.8. Small scale The State, i.e., the Union of India, the possible to create healthy cities industries, including food processing State Governments and the local surrounded by sick villages .Now if we industries.9. Khadi, village and bodies constitute an integral executive have a look at the items in the 11th and c o t t a g e i n d u s t r i e s . 1 0 . R u r a l to implement the directive principles 12th Schedule, we would find that housing.11. Drinking water.12. Fuel contained in Part IV through planned health, culture, education, poverty and fodder.13. Roads, culverts, development under the rule of law. elevation programme, public bridges, ferries, waterways and other It is really unfortunate that the political distribution system, small- scale means ofcommunication.14. Rural activity in this country ignores the industries, rural housing, and things electrification, including distribution of insertion of Part IX and IX-A in the like that have become subject-matter electricity.15. Non-conventional Constitution of India. Many debates of decentralized planning by people's energy sources.16. Poverty alleviation take place on issues like corruption participation without any bureaucratic programm17. Education, including

PUCL BULLETIN, FEBRUARY 2019 10 primary and secondary schools.18. Urban poverty alleviation.12. c o l l e c t i v e r i g h t t o h u m a n Technical training and vocational Provision of urban amenities and development. education.19. Adult and non-formal f a c i l i t i e s s u c h a s p a r k s , According to the Ministry of Rural education.20. Libraries.21. Cultural gardens,playgrounds.13. Promotion Development, there are 2,26,188 activities. 22. Markets and fairs. 23. of cultural, educational and aesthetic village panchayats in the country with Health and sanitation, including aspects.14. Burials and burial 31,98,554 members. That works out hospitals, primary health centresand grounds; cremations, cremation to an average of about fifteen dispensaries. 24. Family welfare.25. grounds; and electric crematorium15. members per panchayat. At the Women and child development.26. Cattle pounds; prevention of cruelty to intermediate level, which in some Social welfare, including welfare of the animals.16. Vital statistics including States is referred to as the Taluk, h a n d i c a p p e d a n d registration of births and deaths.17. Mandal or Block panchayat, there are mentallyretarded.27. Welfare of the Public amenities including street 5,736 such panchayats with 1,51,412 weaker sections, and in particular, of lighting, parking lots, bus stops and members. Additionally, there are 467 the ScheduledCastes and the public conveniences.18. Regulation of district panchayats with 17,935 Scheduled Tribes.28. Public slaughter houses and tanneries. members. Compared to this the distribution system.29. Maintenance We have to appreciate how wide are number of urban local bodies and of community assets. the powers of these institutions which their elected representatives is rather Twelfth Schedule: 1. Urban planning include a power of “preparing plans limited. In 1998, there were 95 including town planning.2. Regulation for economic development and Municipal Corporations, 1436 of land-use and construction of social justice” and the execution of Municipal Councils and 2,055 Nagar buildings.3. Planning for economic such plans. The development activity Panchayats. Elections have always and social development.4. Roads and has been brought at the grass root been a large-scale event in India. bridges.5. Water supply for domestic, level available at the doorstep of “We Even by these standards the industrial and commercial purposes.6. the people of India” who will involve panchayat and nagarpalika elections Public health, sanitation conservancy t h e m s e l v e s i n e c o n o m i c following the 73 r d and 74 t h and solid waste management.7. Fire development and social justice, Amendments of the Constitution services.8. Urban forestry, protection which means human development have been an exercise on an of the environment and promotion on the Fundamental Principles of unprecedented scale. q ofecological aspects.9. Safeguarding governance, contained in Part IV. In the interests of weaker sections of the lists contained in Eleventh and *Ravi Kiran Jain, President, society, including the handicapped Twelfth Schedule of the Constitution and mentally retarded.10. Slum there is hardly any item which might PUCL National & Senior Advocate, improvement and upgradation.11. be required for the exercise of the Allahabad High Court.

Indian Society, Politicians still Hindering Women's Empowerment Pushkar Raj* Women in Indian society and politics citizenship of women is of no concern gallery represents a larger social continue to be pariahs, as events of the main political parties, as the reality in which millions of Indian related to Sabarimala and the Me Too Bharatiya Janata Party mobilized families continue to believe that a girl movement reveal. Women are barred people against the entry, while the child is better born in others' families, from entering the Sabarimala temple states ruling Communists and the resorting to female feticide and in Kerala state on grounds of impurity Congress party lent symbolic support plunging India's gender ratio to 940 owing to menstruation. on television. While BJP president females to 1,000 males, while in Besides being irrational, this social Amit Shah advised the courts to give prosperous regions like Chandigarh, diktat violates the fundamental right precedent to faith while judging Delhi and Haryana it has dipped to of equality guaranteed under the cases, the Kerala state government 818, 868 and 879 per 1,000 Indian constitution. Some women eagerly waited for a review petition respectively. approached the Supreme Court, filed in the Supreme Court, so that it In an average middle-class family, a which upheld their right to enter the could be partially excused from the male child is more likely to be temple. responsibility of implementing the admitted to a better school (that is, Tradition and faith are used court's order. where English is the medium of extensively to sustain inequality in In fact, political parties have instruction) than his female India, as shown in Dalits being barred miserably failed women of the c o u n t e r p a r t . T h o u g h t h e y from drawing water from public wells country, as they are all talk and no constitute46%of college enrollments, or entering temples. In many cases action for nearly a decade on women hold merely 12% of cabinet killings took place when Dalits women's 33% reservation in the positions, 12% in higher judiciary, 8% asserted their right to be human. federal Parliament and state in police and 15% in higher However, despite repeated attempts, l e g i s l a t u r e s . I n f a c t t h e i r administration. prevented by mobs, women could not representation is abysmally low, Evidently women of the country are enter the Sabarimala temple and the at11.4% and 9%respectively. This absent from power seats of government was unable to honor the shows the imbalance at the top community and are a vulnerable lot. order of the highest court of land, where men corner nearly 90% of Me Too movement dealing a blow to India's image as a power. So when a fraction of this humanity lawful society and polity. Indian social reality voiced against sexual exploitation The event also revealed that equal Women's absence from the power under the Me Too campaign it was

PUCL BULLETIN, FEBRUARY 2019 11 met with saintly silence and raving There is an absence of formal sex more so in the absence of an effective retaliation. education at schools, and an average mechanism of protection with A national family-health survey for teenage Indian boy gets sex discomforting consequences for 2015-16 found that49%of women in education from his immediate working women. The Me Too Maharashtra justified spousal e n v i r o n m e n t , B o l l y w o o d o r campaign is a strong testimony to violence owing to disobedience, p o r n o g r a p h y. W o m e n a r e this. presenting a disempowered self- stereotyped and fantasized from a Policymakers must recognize that image lending credulity to Simone de male world view. women's empowerment is not only a Beauvoir's assertion, “One is not `Louann Brizendine in `The Female right but is knitted with justice and born but becomes woman.” Brain' claimed that while men think development of the country. If India is This is the curse of society in which about sex every 52 seconds, for a to join the club of developed w o m e n b e c o m e a n o b j e c t , women it is once a day. This and countries in the near future, it must p r e d e s i g n e d f o r a r o l e , related neuroscience research that is create a robust social capital, which conceptualized from man's point of informing modern psychology have a is a prerequisite for such an ambition. view. When women do not fit into it by significant value for educational December 18, 2018 asserting their individuality they policy and molding cultural attitudes *Pushkar Raj is a researcher and author become target of crime. In toward women on the street and in based in Melbourne. Formerly he taught 2016,338,954 incidents of crime society at large. political science in Delhi University and against women, including 38,947 It is no surprise that instinctive male was the national general secretary of the rapes, were reported in the country, behavior aggravates into predatory People's Union for Civil Liberties (PUCL). indicating peril of 'womens safety. trespassing in positions of authority, q

Dr. Nasar Firdausi Passed Away With a very heavy heart, I have to inform you all that PUCL district executive member, Dr. Nasar Firdausi passed away today (8th January 2019) in the morning due to heart attack. We lost a very active and honest member who was very close to our hearts. We hope that his soul rests in peace. We join Jamshedpur PUCL in mourning the untimely demise of Dr. Nasar. Shakti Ranjan Nag, Jharkhand PUCL. q Condolence Messages Please convey our condolences to Sorry Mr. Nag. Please convey my Our condolences to all Jamshedpur the family of the departed Dr. Nasar condolences to the bereaved family. PUCL at time of great loss of Dr. Firdausi. Mahi Pal Singh, Former Secretary, Nasar. RIP V.Suresh, General Secretary, PUCL PUCL National PUCL Ajmer National...... Oh no – this is a sad news. Very Rest in peace. Heartfelt condolences on the sad unfortunate and trafic. May the Nishat Husain, Rajasthan PUCL q demise of Dr Nasar Firdausi. RIP. departed soul rest in peace. Radhakant Saxena, Vice-President, Alok Kumar PUCL National

PUCL Rajasthan: Jaipur Ajmer and would be harmed along and there may be a gang war with the 30th November, 2018 the way like Tulsiram Prajapati, who hostile group. It is our contention that Sh. Bhupinder Singh, was a victim of a fake encounter. there are no hostile gang members in DG - Prisons, GOR Despite the pendency of this petition, Udaipur jail, as per Azam's wife and Jaipur. the next date of hearing for which is lawyer. The mother of Azam Khan Subject: Please do not move the 17 December, the administration is has filed an application for the same prisoner Azam Khan, presently in now transferring Azam Khan to Ajmer to the Superintendent of the Udaipur Udaipur Jail, to Ajmer Jail as the jail from Udaipur jail. There are no Prison this morning itself. Please find matter is seized by the Jodhpur High cases against him in Ajmer, only in attached as annexures the Jodhpur Court. Udaipur. As such there is no good High Court Order, the synopsis of the Dear Sir, reason for him to be shifted to Ajmer petition and the letter written by the Azam Khan, a crucial witness in the apart from creating fear and mother. Sohrabuddin Sheikh murder case, intimidation. In light of the threat to Please do not move Azam Khan, has approached the Rajasthan High Azam Khan's life, we appeal to the despite the police party having C o u r t ( S . B . C r i m i n a l W r i t administration to not do so and to reached Udaipur from Ajmer. No.416/2018) for protection as he take all possible measures to ensure With regards, was threatened that he would be his safety. Kavita Srivastava, President, shifted to the high security jail at The pretext of moving is that there is PUCL, Rajasthan q a threat to his life in the Udaipur Jail PUCL BULLETIN, FEBRUARY 2019 12 Bulandshahar: Unravelling the Anatomy of A Riot Ram Puniyani The scene of violence in the name of the action as per law. As the carcass the officials demanding transfer of e m o t i v e i s s u e s h a s b e e n was being taken away in the tractor, Singh. The other highlights related to continuously throwing new patterns some 40-50 youth from outside the incident are mixed, disturbing of instigating and orchestrating descended on the village and took and appreciable both types. One is violence. In recent times we saw the charge of tractor. As per some that many of those who had come to major violence following the reports the beef was thrown in the attend Ijtema were sheltered in the demolition of Babri Mosque (1992), field by those belonging to Bharatiya Shiva Temple. SHO Singh's Godhra train burning (Gujarat Janta Morcha and Bajrang Dal. teenager son appealed for peace carnage 2002), murder of a Swami Reports by some journalists, report and harmony in the area. He said "I (Kandhamal 2008), on the pretext of (video) shows that the whole would appeal to the entire country, love Jihad (Muzaffarnagar 2013) incident was orchestrated by please stop Hindu-Muslim violence. among others. The gross pattern outsiders. People get violent at the slightest seems to be to spread hatred The youth took the tractor to the provocation. People should against sections of society and police station, lodged the FIR and understand and think that they are unleash the hate, which gets created ruckus. Yogesh Raj, local bound by the law." In response the converted in to violence. In last Chief of Bajrang Dal, who lodged the DSP in a moving face book post couple of years, what has dominated FIR, was booked as the prime stated “I salute Abhishek who even the scene of violence has been the accused in the incident. Various after losing his father is not speaking accusations related to slaughter of versions are in the air. What followed the language of hatred and cows, beginning with horrifying led to the death of Inspector Subodh violence,” murder of Mohammad Akhlaq down Singh in a brutal manner. Sudarshan On the other side, the Chief Minister to the killing of Junaid, Cow-beef TV's, Suresh Chavanke, the right of UP, Mr. Adityanath, in the have been used as a 'weapon of wing channel close to RSS, tried to a f t e r m a t h o f t h i s t r a g e d y hate'. In this very series follows the link up the violence to the Muslims - commented that incidents related to Bulandshahr killings of two men, one Itjema. As per Chavanke's tweet the Cow slaughter are increasing and of them being a Hindu police officer. violence was indulged in by the need to be curbed. This 'Cow- This tragedy goes on to show the Muslims participating in Itjema. This Primacy' got reflected in the underbelly of communal violence, was countered by the police statement of BJP MP who advised which in due course brings into its authorities who tweeted that the the investigating team to examine orbit not only the religious minorities incident had nothing whatsoever to whether SHO came under attack as but people from the majority religion do with the Itjema, which was at a he failed to check the cow slaughters also. As such the violence does not place far away and was a peaceful and cow smuggling! The murder of involve much killing of majority event. Singh a serving police official is community, though they also suffer Many other theories also started relegated to second place in Yogi- in small number. In this case, in being thrown up. One being that one BJP scheme of things. These are Bulandshahr, we see the major Jitendra Malik, who is part of disturbing signs of times where the victim is not only a Hindu but an Rashtriya Rifles posted in Kashmir, politics is being dictated by Modi- officer of the state police. While full was present on the spot and was the Yogi, in which emotive issues are details are yet to come out with SIT culprit of the violence. His elder taking precedence over human probing, whatever can be gleaned brother denied the charge and lives, which does not disturb them so from the media reports is frightening promised to prove the innocence of far as these serve their political enough. his brother. Malik was brought back agenda of polarization! In beginning of December 2018 a from his duty in Kashmir, but nothing Meanwhile the sense of insecurity is large congregation of Muslims, much seems to have been proven reigning supreme in the village, Ijtema, took place in Bulandshahar. about his complicity. The usual where the incident took place. The The congregation had participation question is who did it? Before that villagers who repeatedly affirmed of Muslims, by rough count of let's see the very revealing facts that their village had braved all the around fifty lakhs. These religious related to the Inspector, SHO, who communal incidents like Babri congregations do keep taking place as per his sister was killed in a Demolition violence Muzaffar Nagar in different parts of the country. planned manner. Subodh Singh was violence, etc. is now fearing for their Nearly seventy Kilometers away the one who had investigated the safety, feeling insecure in the places from the place of this congregation, Mohammad Akhlaq case leading to where they have been living in in village Siyana of Bulandshahar, arrest of many culprits. It is said that peace in decades. this incidence came to notice. It it was he “who always took the right In the trajectory of patterns of seems someone had thrown the stand especially on Hindu-Muslim violence, Bulandshahr is yet remains of a slaughtered cow in an issues”. Probably he was not letting another pattern of probably a agricultural field. The villagers Hindutva groups to have their planned violence, where the major noticed the carcass and reported it divisive ways. The local unit of BJP victim can be from majority to police, which planned to initiate related organizations had written to community itself; yet another victim of cow politics! q PUCL BULLETIN, FEBRUARY 2019 13 PUCL Delhi: Sharing a poem composed by one of our PUCL intern. We live in Democracy Sigh! Do you guys know We live in democracy. Sigh! Everybody listen, We live in democracy? Does this make you laugh? Don't laugh. Why! We live in democracy for name only! Ha ha. We live in an autocracy Listen! Don't laugh here, and don't even cry. If in an autocracy, you laugh without permission, You may go to prison! Yes, you listen right. Yes, we live in autocracy. Md. Naser SK* *Md. Naser SK, the third year student of B.A.LL.B.(Hons.), Haldia Law College, West Bengal, an Intern with PUCL Delhi Surveillance State is a Reality Now V. Venkatesan A year after a Constitution Bench of 2000, read with rule 4 of the problem of accessing information nine judges declared privacy a Information Technology (Procedure stored in “any computer resource” to fundamental right, its fears of the and Safeguards for Interception, perform their duties effectively. The emergence of a surveillance state Monitoring and Decryption of order gave no reasons as to why only have come true. Information) Rules, 2009. The order, these 10 agencies were authorised, “Our government was successful in issued by the competent authority, leaving one to speculate whether compelling Blackberry to give to it the authorised 10 security and other agencies already had that ability to intercept data sent over intelligence agencies to intercept, power and, therefore, required no Blackberry devices. While such monitor and decrypt any information authorisation, or whether they did not interception may be desirable and generated, transmitted, received or require this power, as per the permissible in order to ensure stored in any computer resource Centre's reasoning. national security, it cannot be under the Act. The term “computer resource”, as unregulated.... George Orwell The agencies are the Intelligence defined by Section 2(k) of the IT Act created a fictional State in 1984. Bureau (I.B.), the Narcotics Control also points to the possibility of the Today, it can be a reality. The Bureau (NCB), the Enforcement order being overbroad and therefore technological development today Directorate (E.D.), the Central Board amenable to misuse by the can enable not only the state, but also of Direct Taxes (CBDT), the authorities. Originally, it meant big corporations and private entities Directorate of Revenue Intelligence computer, computer system, to be the 'Big Brother'.”—Justice (DRI), the Central Bureau of computer network, data, computer Sanjay Kishan Kaul in Justice K.S. Investigation (CBI), the National database or software; in 2008, the Puttaswamy (Retd) vs Union of India, Investigation Agency (NIA), the Act was amended in such a way that a unanimous judgment declaring the Cabinet Secretariat (Research and t h e t e r m i n c l u d e d a n y right to privacy as a fundamental Analysis Wing, or RAW), the “communication device”, such as right, delivered by a nine-judge Directorate of Signal Intelligence (or mobile phones, within the definition. Constitution Bench on August 24, DSI, for the service areas of Jammu The official justification 2017. and Kashmir, North-East and Assam Faced with civil society's outrage On December 20, 2018, by issuing a only), and the Commissioner of against the order, the Home Ministry terse Statutory Order (S.O.6227(E), Police, Delhi. sought to clarify the rationale of the the Union Home Secretary, Rajiv The “authorisation” granted to these order through a press release, which Gauba, vindicated Justice Kaul's 10 organisations has astounded read: “No new powers have been apprehension in the landmark observers and dismayed civil society. conferred to any of the security or law judgment on privacy, unmindful of the The word “any” before the words enforcement agencies by the S.O. order's clear inconsistency with the “computer resource” in the order dated 20.12.18. It has been issued in Supreme Court's pronouncement sounded like “every”. Although the accordance with rules framed in 2009 declaring the right to privacy an Supreme Court, in a recent case, and in vogue since then. Each case intrinsic part of the right to life and held that “any” does not mean of interception, monitoring, personal liberty under Article 21 and “every”, the implication, caused by a decryption is to be approved by the as a part of the freedoms guaranteed deep distrust of the state, was competent authority, that is, the by Part III of the Constitution. ominous. Union Home Secretary. These The order drew its sustenance from The very mention of these 10 powers are also available to the Subsection (1) of Section 69 of the agencies in one order suggested that competent authority in the State Information Technology (IT) Act, they had been handicapped by the governments as per IT (Procedure

PUCL BULLETIN, FEBRUARY 2019 14 and Safeguards for Interception, receiving a complaint about any resource generating, transmitting, Monitoring and Decryption of unauthorised use of these powers receiving or storing such information; Information) Rules 2009.” does not arise. Rather than or (b) intercept, monitor, or decrypt According to Subsection (1) of investigate and bring to book those the information, as the case may be; Section 69 of the Act, as amended in guilty of such unauthorised exercise or (c) provide information stored in 2008, where the Central government of these powers, the order appears to the computer resource. Subsection or a State government is satisfied provide an ex post facto justification (4) enables the authorities to punish that it is necessary or expedient to do for them and guarantee them legal the subscriber or intermediary or any so in the interest of the sovereignty or protection from prosecution. person who fails to assist the agency integrity of India, for the defence of Third, the order would ensure that the referred to in Subsection (3) with India, for ensuring the security of the provisions of law relating to lawful imprisonment up to seven years and state and friendly relations with interception or monitoring of a fine. foreign states, or in the interest of computer resource are followed and Experience with the Telegraph Act public order or to prevent incitement if any interception, monitoring or - The roots of the government's to the commission of any cognisable decryption is required for the efforts to snoop on digital content can offence relating to the above or for the purposes specified in Section 69 of be traced to Section 5(2) of the Indian investigation of any offence, it may, the IT Act, the same is done as per the Telegraph Act, 1885, whose subject to the provisions of due process of law and with the constitutionality was tested by the Subsection (2) for reasons to be approval of competent authority, that Supreme Court in People's Union for recorded in writing, direct any of its is, the Union Home Secretary. It is Civil Liberties (PUCL) vs Union of agencies to intercept, monitor or clear that in the absence of the order, India in 1996. In this case, a bench of decrypt any information transmitted, the government was finding it two Supreme Court judges dealt with received or stored through any impossible to ensure compliance telephone tapping. The petitioner computer resource. with the law relating to interception or challenged the constitutional validity Subsection (2) of Section 69 says monitoring of computer resources of Section 5(2) of the Telegraph Act that the procedure and safeguards and that the activity was being a n d u r g e d t h a t p r o c e d u r a l subject to which such interception or resorted to without the due process of safeguards against arbitrary acts of monitoring or decryption may be law or the approval of the competent telephone tapping be adopted. carried out shall be such as may be authority. Section 5(2) authorises the prescribed. The procedure and Significance of safeguards - The interception of messages in “safeguards” envisaged under this order states “interception, monitoring transmission in the following terms: subsection, it appears, have not been and decryption” as its purpose. This “On the occurrence of any public sufficiently prescribed. implies that intelligence gathered by emergency, or in the interest of the The only “safeguard” envisaged these agencies may be used for any public safety, the Central government under rule 22 of the IT Rules, 2009, is purpose whatsoever so long as it or a State government or any officer that all such cases are to be placed satisfies the meaning of “monitoring”. specially authorised in this behalf by before a review committee headed It is here that safeguards assume the Central government or a State by the Cabinet Secretary, which shall significance. Effective safeguards government may, if satisfied that it is meet at least once in two months to can only be guaranteed by an necessary or expedient so to do in review such cases. In the case of exclusive data protection law, which the interests of the sovereignty and State governments, a committee the Centre is yet to enact, despite a integrity of India, the security of the headed by the Chief Secretary draft Bill having been recommended state, friendly relations with foreign concerned will carry out the review. by an expert committee headed by states or public order or for The Home Ministry's press note the former Supreme Court judge preventing incitement to the claimed that the S.O. would help in Justice B.N. Srikrishna. commission of an offence, for these ways: Firstly, it would ensure Collecting data beyond the requisite reasons to be recorded in writing, by that any interception, monitoring or amount or purpose specified and order, direct that any message or decryption of any information through profiling of individuals or groups on class of messages to or from any any computer resource is done as the basis of such interception are the person or class of persons, or relating per the due process of law. The note risks awaiting the country in the to any particular subject, brought for seemed to be a tacit admission that absence of a data protection law. The transmission by or transmitted or until now agencies had engaged in question remains whether the received by any telegraph, shall not these acts without complying with the government will be the judge in its be transmitted, or shall be due process of law. own case in deciding the extent and intercepted or detained, or shall be Second, the order aims to prevent scope of monitoring data, as the disclosed to the government making any unauthorised use of these existing safeguards do not provide a the order or an officer thereof powers by any agency, individual or system of checks and balances. mentioned in the order.” intermediary. This could suggest that The absence of effective safeguards A proviso to this section reads that there have been instances of such against the misuse of these powers press messages intended to be unauthorised use of these powers by will likely make the Act's provisions published in India of correspondents an agency, individual or intermediary, more draconian than one may a c c r e d i t e d b y t h e C e n t r a l which led the government to assume. Subsection (3) of Section 69 government or a State government proactively issue such a notification r e q u i r e s t h e s u b s c r i b e r o r shall not be intercepted or detained without receiving any complaint from intermediary or any person in charge unless their transmission has been an aggrieved party. of the computer resource to extend prohibited under this subsection. As state surveillance takes place all facilities and technical assistance The PUCL had approached the without the knowledge of the person to the agency to (a) provide access to Supreme Court in the wake of a being watched, the question of or secure access to the computer report on the “tapping of politicians'

PUCL BULLETIN, FEBRUARY 2019 15 phones” by the CBI, which was cannot resort to telephone tapping activities will be illegal as per the published in the journal Mainstream. even though there is satisfaction that Puttaswamy judgment as they would Investigation revealed serious lapses it is necessary or expedient to do so not be operating under law. on the part of Mahanagar Telephone in the interests of the sovereignty and The Intelligence Services (Powers Nigam Limited (MTNL). The integrity of India, security of the state, and Regulation) Bill, 2011, was Supreme Court found in this case friendly relations with sovereign introduced to regulate the functioning that the files pertaining to interception states, public order or for preventing of Indian intelligence agencies and were not maintained properly. incitement to the commission of an institute an oversight mechanism. The Supreme Court held in this case offence. However, the Bill lapsed in 2011 and that telephone conversations were Contrast this with the December 20 a legislative vacuum remains. construed to be an important order issued by the Home Ministry, The Srikrishna Committee report ingredient of privacy and the tapping which is silent on both public took note of the existing legal of such conversations would infringe emergency and public safety. Nor framework in the form of Section 5 of upon Article 21, unless permitted by does it cite any of the grounds Telegraph Act and Sections 69 and procedure established by law. The mentioned in Section 69(1) of the IT 69B of the IT Act. For each of these court ruled that it would be necessary Act. mechanisms, the report said, to lay down procedural safeguards In 2011, the Cabinet Secretary, in oversight was carried out through a for the protection of the right to response to a directive from the review committee set up under the privacy of a person until Parliament Prime Minister, recommended that Telegraph Rules. This committee intervened by framing rules under the government either remove the reviews interception orders passed Section 7 of the Telegraph Act. Central Board of Direct Taxes under the Telegraph Act and Section The court accordingly framed (CBDT) from the list of agencies 69B of the IT Act. It consists of the guidelines to be adopted in all cases authorised to intercept telephone Cabinet Secretary, Secretary to the involving telephone tapping. The calls—since income tax laws fall Government of India in charge of Supreme Court's guidelines in the within civil jurisdiction and do not Legal Affairs, and the Secretary to the P U C L c a s e w e r e f o r m a l l y always impinge on public safety—or Government of India in charge of the incorporated in the Telegraph Rules delineate the stipulations for and the Department of Telecommunications. with the insertion of Rule 419-A. But extent of surveillance the agency is As per a recent right to information the new rule could not offer effective allowed, including the level at which (RTI) application to the Home remedies against telephone tapping requests were to be made for Ministry, 7,500 to 9,000 such orders in the absence of independent authorisation by the Home Secretary. are passed by the Centre every oversight of interceptions and The Centre clarified in a press note month. The review committee, which parliamentary supervision or control that the law did not permit use of meets once in two months, has the over agencies entrusted with telephone tapping and monitoring of unrealistic task of reviewing 15,000 snooping. conversations to merely detect tax to 18,000 interception orders in every Radia tapes - In 2011, in the wake of evasion. meeting, the report said. (Comments the Niira Radia tapes, the Centre, There are specific laws and rules that in response to the White Paper through a press note, referred to the contain provisions for detection of submitted by Kalyan Biswas, Supreme Court's ruling in the PUCL unaccounted wealth and evasion of associate vice president at Internet case on December 18, 1996, which taxes, and interception of telephone and Mobile Association of India, on held that Section 5(2) of the Act calls without “public emergency” or January 31, 2018, are available on envisages “occurrence of any public “public safety” being at stake was not file with the committee.) emergency” or “interest of public in accordance with the law, as Additionally, the committee noted safety”, which is a sine qua non for exhaustively interpreted by the that surveillance practices were also the application of this provision. Supreme Court, the note said. enabled by the licence agreements “Neither of these are secretive The inclusion of the CBDT among the entered into by telecom service conditions or situations. Either of the 10 agencies authorised to snoop on providers with the government. For situations would be apparent to a digital data in the December 20 order example, such agreements can reasonable person,” the Centre exposes the lie being perpetrated by mandate low encryption standards. observed in the note on April 25, the current regime. This poses a threat to the safety and 2011. The Justice B.N. Srikrishna security of the personal data of data According to the note, “public C o m m i t t e e r e p o r t o n D a t a principals, the person, company or emergency” means the prevailing of Protection, “A Free and Fair Digital entity whose information is being a sudden condition or state of affairs Economy: Protecting Privacy, collected. affecting the people at large that calls Empowering Indians”, submitted to More importantly, the Srikrishna for immediate action. It is one which the Centre recently, observes that Committee observed: “Surveillance raises problems concerning the there is no general law in India today should not be carried out without a interest of public safety, the that authorises non-consensual degree of transparency that can pass sovereignty and integrity of India, the access to personal data or the muster of the Puttaswamy test of security of the state, friendly relations i n t e r c e p t i o n o f p e r s o n a l necessity, proportionality and due with sovereign states or public order communication for the purposes of process. This can take various forms, or the prevention of incitement to the intelligence gathering or national including information provided to the commission of an offence. security. public, legislative oversight, “Public safety” means the If there are any entities that are executive and administrative state of freedom from danger or risk carrying out activities of such a oversight and judicial oversight. This for the people at large. nature without statutory authorisation would ensure scrutiny over the When either of these two conditions (for example, solely through working of such agencies and infuse are not in existence, the authorities executive authorisation), such public accountability.”

PUCL BULLETIN, FEBRUARY 2019 16 The committee proposed that the committee states that processing of data to evaluate certain personal surveillance architecture embed personal data in the interests of the aspects relating to a natural person, systematic risk management security of the state shall not be in particular to analyse or predict techniques within itself. This would permitted unless it is authorised aspects concerning that natural lead to the prioritisation and pursuant to a law and is in person's performance at work, narrowing of its activities by devoting accordance with the procedure economic situation, health, personal resources to credible risks, whether established by such law made by preferences, interests, reliability, reputational or organisational. Parliament and is necessary for, and behaviour, location or movements. For example, an assessment of proportionate to, such interests being Such profiling, Justice Kaul said, whether a particular measure was achieved. could result in discrimination based the least intrusive to achieve a stated National security on religion, ethnicity and caste. aim may be required. This will not Courts have traditionally deferred to However, he added, profiling could only reduce the costs incurred by the the executive's prerogative on be used to further the public interest state but will be consistent with civil national security grounds. The moot and for the benefit of national rights protection. question is how much actual security security. “ W e h a s t e n t h a t t h i s such a measure would provide. The security environment, not only in recommendation, albeit not directly Scholars such as Jennifer Chandler India but throughout the world, made a part of the data protection argue that heightened surveillance makes the safety of persons and the statute, is important for the data often leads to less rather than more state a matter to be balanced against p r o t e c t i o n p r i n c i p l e s t o b e security since these measures have the right to privacy, he observed. But implemented effectively and must be been known to disproportionately then he warned: “Knowledge about a urgently considered,” the committee affect racial and religious minorities, person gives a power over that said in its report. on the basis of profiling along those person. The personal data collected It said that the data protection law lines. i s c a p a b l e o f e f f e c t i n g should require the law enforcement These measures also seem to representations, influencing agencies to ensure that processing of increase a feeling of security but do decision-making processes and personal data was actually not translate into an actual increase shaping behaviour. It can be used as necessary and proportionate to their in physical safety. This condition is a tool to exercise control over us like p u r p o s e . F o r e x a m p l e , t h e called “security theatre”, where the the 'Big Brother' state exercised. This maintenance of a DNA database of mental aspect of “feeling secure” is can have a stultifying effect on the all citizens, some of whom may be given greater importance than actual expression of dissent and difference innocent, to track crime, without legal physical safety. If national security is of opinion, which no democracy can s a n c t i o n , w o u l d b e a the objective, it is unclear why afford.” Even as the Centre seeks to disproportionate law enforcement organisations aiming to detect acquire the power of surveillance in measure. financial and narcotics-related the name of national security, it would A similar exercise was undertaken in offences have been empowered. The do well to read what Justice Kaul said the United Kingdom, where the NCB and the CBDT pursue in the Puttaswamy judgment on the government later had to delete the objectives other than national right to privacy with regard to the role records of more than a million security. of privacy in preventing awkward innocent adults and children after the Justice Kaul dealt with profiling in his social situations and reducing social enactment of the Protection of concurring judgment in the friction. Freedoms Act, 2012, which inter alia Puttaswamy case (right to privacy). The December 20 order fails the test regulates the collection, retention, He referred to the European Union of proportionality as laid down by the destruction of biometric data, regulation of 2016 on data privacy, Supreme Court in several cases. surveillance mechanisms, etc. which defines profiling as any form of Courtesy: The Frontline magazine. [https://frontline.thehindu.com/cover- Section 42 (1) of the Personal Data automated processing of personal q Protection Bill, 2018, proposed by the data consisting of the use of personal story/article25878387.ece?homepage=true] Fact Finding Report on Violence unleashed on workers participating in All India Worker’s Strike on 8th & 9th January, 2019 A team of 11 members of various permanent, contract and fixed term and wounds on his hips and leg. organizations visited the families of contract (FTC) workers of the Daikin Later around 2 pm, when the worker workers as well as police stations and Air Conditioning Mazdoor Union took rally reached the Daikin company courts in the Shahjahanpur, part along with workers from several gate and tried to raise the union flag, Neemrana and Behror areas, in the other companies such as Honda, they were again brutally attacked by wake of news of police repression Toyoda Gosei, Shyon Ultraware, a combination of about 150 police upon workers participating in the All Nidec and others. State repression and 150 hired bouncers. The workers India Worker’s Strike. These are our upon this mobilization had already recognized the bouncers from prior findings: begun at 5 am with a team of attacks motivated by the company On 8th January 2019, as part of the bouncers attacking workers armed management. The police lathi All India Worker’s General Strike with lathis and chains, seriously charged workers and also deployed called by all central trade unions, injuring one worker named Vijay to rubber bullets, tear gas and water 2000 workers in the Japanese Zone the point where he needed to be cannons against women and men in Neemrana industrial area hospitalized and treated for traumatic workers alike, grievously wounding participated in a rally. The injuries to his head, a gashed eye, 40 workers, with many people

PUCL BULLETIN, FEBRUARY 2019 17 requiring hospitalization for fractures 332, 336, 353, and 427 of the IPC and with her husband and 2.5 year old and head injuries. The injured PDPP were applied on the arrested baby. This baby was crying out for the workers included men and women, workers. father. Roommates of one of the permanent and contract employees In a bizarre manner, none of the workers stated that Human at various different companies, but workers who were arrested are Resources personnel at Daikin also the president of the Daikin Air named in the FIR. The FIR names accompanied the police. Many Conditioning Mazdoor Union, and targets 17 people, starting with workers also felt that it was not a Rukumudeen and the general Rukumudeen, the President of the coincidence that most of the arrested secretary Daulat Ram, were also Daikin Air Conditioning Mazdoor workers were not locals from particularly targeted. Union. Rajasthan. On the night of January 8th, between The workers’ families state that the Workers also testified that for the last 11 pm and midnight, several workers workers were picked up near several months a communal angle were picked up from their homes in midnight by a team of police from all 3 had been propagated by the raids. By January 9th, 14 workers n e a r b y p o l i c e s t a t i o n s : m a n a g e m e n t , t a r g e t i n g were in police custody. The fact Shahjahanpur, Neemrana and Rukumudeen, the Union President. finding team spoke to the families of Behror, all from Alwar district. During Workers were told that in electing a several of these workers as well as to the arrests, the police also committed Muslim President they were creating the police. excesses, kicking Deep Singh while the potential for riots. All the families that spoke to the fact swearing at him, while dragging him Most of the arrested workers whose finding team stated the time and out of his home in Behror around 11 families we spoke to were permanent place of arrest to be between 11 pm pm. Champa, wife of Ajay kumar, said workers, except for Deep Singh who and midnight on January 8, at their the police who came to arrest him was a casual worker. Workers felt residence. As per the law this means were drunk and disrespectful that the unity of permanent and that they should have been produced towards her. They showed up at the contract workers and the demand for before the court on the 9th of January, home at 11:45 pm when both permanent employment of contract within 24 hours of arrest. Instead, all members of the couple were unwell workers was particularly resented by the workers were produced before and resting, and Champa even lost the company. the court around 4 pm on January 10, consciousness while the police raid 2018. This would constitute a serious took place. The first attempt at forming the union violation of the law by the police and Preeti, wife of Ghanshyam Saini, said was in 2013, with a 2 month strike, is a matter of concern. that 8 policemen jumped in to their but the management was able to When the fact finding team enquired compound in Behror, without ringing bring a stay order against the with the police about this, the the bell, shocking her and their two formation of the union. A later attempt investigating officer in the case, Mr children, aged 2 and 3 years old to form the union was countered by Jai Prakash, Shahjahanpur police respectively when they were terminating most of the union office station claimed that the workers were sleeping. Her neighbor, Lal chand bearers and active members. Finally arrested from “various places” on meher was picked up next, and his on 29 August 2018 the third attempt January 9th by the police from the wife, Jyoti, showed the fact finding to register the union was successful Neemrana P.S., and were held there t e a m C i t y h o s p i t a l r e c o r d s with intervention from the Rajasthan overnight. Police from the Neemrana demonstrating that he had already High Court, but management refused P.S., Alwar, asked us to direct all been injured in the lathi charge. He to recognize the union or negotiate enquiries towards the IO. was prescribed medicines for a with the office bearers, despite it The Investigating Officer and the wound on his thigh. Sanjukta, wife of being an independent, non-affiliated, policemen from the Neemrana Police Sujit, also said her husband had been registered trade union. In retaliation, Station both resolutely refused to injured in his leg during the lathi management transferred 15 workers give any members of the fact finding charge, and 12 policemen barged i n t o v a r i o u s o t h e r s e r v i c e team, the workers’ family, or their into her home, scaring her 8 month locations.Since 2013 about 50 lawyer a copy of the FIR which was old baby. permanent workers have been registered at Neemrana P.S. The Sanjukta had also noticed her sacked and countless more contract Investigating Officer only confirmed husband in media footage of the lathi workers in the struggle to register the that a total of 14 workers had been charge clearly showing that her union. The struggle continued and on arrested, who names were reported husband was being one-sidedly two occasions when the union tried to in the news: Mahesh Kumar, 30, from beaten by police. She asserts that he hoist the union flag, it was forcefully Jhunjhunu; Ghanshyam Saini, 26, was a very gentle person who could removed by the bouncers of the from Alwar; Surendar Kumar, 28, never ever attack anyone. Ajay factory. from Himachal Pradesh (HP); Thakur’s wife Sunita wondered if Jagdev, 26, HP; Ajay Kumar 35, HP; police were choosing to arrest those The Daikin union however is Sukh Ram, 28, HP; Avinash people who were visibly getting recognized by workers as being truly Chandra, 27, HP; Praveen Kumar, beaten by police in media coverage independent of management and 26, HP; Pankaj Chaudhary, 30, HP; of the event. resilient in the face of repression. It Ranjeet Kumar, 26, HP; Sujit, 31, HP; Pankaj Chaudhary’s wife Parveen has successfully challenged unfair Deep Singh, 25, UP; Ajay Thakur, 25, testified that the contractor labour practices, and enabled 70 from Orissa and Lal Chand, 28, accompanied the police when they FTC workers to join the rolls of Orissa. Sections 147, 148, 149, 307, came to her home where she lives permanent workers. With this

PUCL BULLETIN, FEBRUARY 2019 18 struggle, workers state that the first be seen in that context. practices, contractualization, plant, Plant A has shown major Since 8th January, the plant has been oppressive working conditions improvements in working conditions. closed. and retaliatory actions of forced However, a newly opened Plant B The recommendations of the fact termination or transfer of active has more than 400 women, mostly finding team are as follows: union members should be ended. migrants from Chhattisgarh and the • The arrests appear prima facie to • The union should be recognized North East has worse working be arbitrary and backed by no by management and the conditions: work pressure is high with evidence. The workers who were democratic and trade union rights high line speed and not enough arrested were not even named in of the workers should be provision for reliever workers, the FIR, which names 700 recognized. leading to constraints in taking toilet “unknown” people - this has The fact finding team consisted breaks, and intense pressure from clearly been misused as a tactic of:Sumeet, Workers Solidarity the management. Many Plant B to pick up any number of workers. Center; Yogesh, Inquilabi Mazdoor workers participated in the strikes on These false cases should be Kendra; Subhash, Shramik Sangram January 8th. These working withdrawn and immediately Committee; Gunjan, Human Rights conditions are widely prevalent in release all arrested workers. Law Network; Tarachand, Human many other companies in the area, • The deployment of bouncers to Rights Law Network; Bittu, WSS, and the consolidation of workers intimidate workers and their Karnataka Janashakti; Shailza, across many factories in Neemrana families at home and on the WSS, PUCR Haryana; Sarla, PUCL Mazdoor Manch, and then Mazdoor company premises as well as Jaipur; Nisar, PUCL Jaipur; Mukesh, Sangharsh Samiti, Alwar, was police to intimidate workers Mazdoor Kisan Shakti Sangathan; perceived as a threat by all these should be stopped immediately. Nayan, Krantikari Naujawan Sabha companies and the repression must • The use of unfair labour 10th January, 2019 q

Contd. from page no. 20

PUCL BULLETIN, FEBRUARY 2019 19 Postal Regn. No.: DL(E)-01/5151/2018-2020 Posting : 1-2 February, 2019 at New Delhi PSO Date of Pub.: 27-28 January, 2019

PUCL Press Statement: 25thJanuary, 2019 Regd. Office : Going Beyond Telephone tapping to Electronic 332, Ground Floor, Patpar Ganj Communication Surveillance: Opp.Anand Lok Apartments, What are the safeguards for citizens? Mayur Vihar-I, Delhi 110091 Supreme Court Admits PUCL PIL Challenging Surveillance Tel.: +91-11-22750014 Powers under The Telegraph Act and it Act E-mail : [email protected] [email protected] Website : www.pucl.org

Founder : Jaya Prakash Narayan President : Ravi Kiran Jain General Secretary : V. Suresh Treasurer : Surendra Kumar Vice-Presidents : Binayak Sen, G. Saraswathi (Ms.), N.D. Pancholi, P.B. D’sa, Radhakant Saxena, Sanjay Parikh. Secretaries : Kavita Srivastava (Ms.), Rohit Prajapati, Sudha Bharadwaj (Ms.), Vandana Misra (Ms.), YJ Rajendra Organising Secretaries : Ajay T.G., Arjun Sheoran, Nishat Hussain (Ms.).

Contd. on page no. 19 Editor : V. Suresh Editorial Board : Sanjay Parikh, Ms. Kavita Srivastava, Ms. Sudha Bhardwaj, Ms. Daisy Narain (Prof.) Assistance : Babita Garg

V. Suresh, General Secretary, PUCL, on behalf of People's Union for Civil Liberties; Printed at: Royal Offset, 489, Patparganj Indl. Area, Delhi-92; Published at: 332, Ground Floor, Patpar Ganj, Opp.Anand Lok Apptt., Mayur Vihar-I, Delhi 110091; Editor: V. Suresh.

PUCL BULLETIN, FEBRUARY 2019 20