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CASIHR Journal on Human Rights Practice [Vol CASIHR Journal on Human Rights Practice [Vol. 1 Issue. 1] CASIHR JOURNAL ON HUMAN RIGHTS PRACTICE Prof. (Dr.) Paramjit S. Jaswal Patron Prof. (Dr.) G.I.S Sandhu Excecutive Editor Dr. Shilpa Jain Editor In Chief ADVISORY BOARD Justice Rajive Bhalla Justice Mahesh Grover Justice AK Mittal Justice Surya Kant Professor (Dr.) Upendra Baxi Professor (Dr.) Ranbir Singh Professor (Dr.) Nishtha Jaswal Dr. Upneet Lalli Professor (Dr.) Nisha Dube EDITORIAL BOARD Dr. Anand Pawar Dr. Manoj Sharma Dr. Shruti Goel i CASIHR Journal on Human Rights Practice [Vol. 1 Issue. 1] CONTENTS I. MASS SURVEILLANCE PROGRAMS AND RIGHT TO PRIVACY IN INDIA ............................. 2 II. LEGAL CONTROL OF CATTLE GRAZING IN NIGERIA ...................................................... 22 III. TACKLING GENDER-BASED VIOLENCE IN THE AGRICULTURAL SECTOR: THE SUCCESS OF THE FAIR FOOD PROGRAMME ................................................................................. 36 IV. JUVENILES IN CONFLICT WITH LAW UNDER JUVENILE JUSTICE SYSTEM: A PSYCHO- LEGAL ANALYSIS .......................................................................................................... 52 V. DISABILITY AND QUEST FOR JUSTICE: PROBLEMS FACED BY PEOPLE WITH DISABILITIES ................................................................................................................. 64 VI. “FROM CAVES UNTO WEB”-TRANSNATIONAL TERRORISM VIA SOCIAL MEDIA: UNDERSTANDING CHALLENGES AND SOLUTIONS FOR ‘HUMAN RIGHTS’ IN 21ST CENTURY ...................................................................................................................... 74 VII. HUMAN RIGHTS CENTRIC LAW FOR CONTROLLING TB IN INDIA: AN URGENT GLOBAL NEED ............................................................................................................................ 85 VIII. THE PREDICAMENT OF MANUAL SCAVENGERS AND DISABILITIES ARISING OUT OF IT: AN OVERVIEW ............................................................................................................ 100 IX. HUMAN TRAFFICKING: LEGAL FRAMEWORK WITH SPECIAL REFERENCE TO THE TRAFFICKING OF PERSONS (PREVENTION, PROTECTION AND REHABILITATION) BILL, 2016............................................................................................................................ 118 X. DECRIMINALIZING OF SEX WORK: AN INTERNATIONAL HUMAN RIGHTS APPRAISAL 137 XI. ENFORCEMENT OF INDIVIDUAL CRIMINAL RESPONSIBILITY ON INDIVIDUAL MEMBERS OF ARMED NON-STATE ACTORS UNDER INTERNATIONAL CRIMINAL LAW ................. 155 XII. TRITIYA PRAKRITI: A NARROW-MINDED LAW STORY ............................................... 169 XIII. HUMAN RIGHTS AND ANTI – TERROR LAWS IN INDIA................................................. 182 1 CASIHR Journal on Human Rights Practice [Vol. 1 Issue. 1] MASS SURVEILLANCE PROGRAMS AND RIGHT TO PRIVACY IN INDIA Prof. (Dr.) Nishtha Jaswal & Dr. Lakhwinder Singh I. INTRODUCTION David Lyon says, “Surveillance is the monitoring of the behaviour, activities, or other changing information, usually of people for the purpose of influencing, managing, directing, or protecting them.”1 Government surveillance enables the government authorities to provide security to the lives and liberties of the individuals. Indian Constitution empowers the Parliament to make laws on the subject matters of surveillance while protecting the fundamental rights of the individuals. India has enacted various surveillance laws including Indian Telegraph Act, 1885, Indian Telegraph Rules, 1951, Information Technology Act, 2000, Information Technology (Amendment) Act, 2008, Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009, Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, Information Technology (Intermediaries Guidelines) Rules, 2011, Information Technology (Guidelines for Cyber Cafe) Rules, 2011, Code of Criminal Procedure, 1973, Indian Penal Code 1860, National Investigation Agency Act 2008, etc. India executes its surveillance legislations with the help of various law enforcement agencies including National Investigation agency, Research and Analysis Wing, Intelligence Bureau, Central Bureau of Investigation, States’ Police, Central Reserve Police Force, and other paramilitary forces. However, the rise in extensive, surreptitious, opaque, unlimited and unaccountable use of the surveillance techniques and mass surveillance projects by the law enforcement agencies without having adequate privacy protected legislations involves serious repercussions of violating the individuals’ right to privacy. Since ages, the autocrat authoritarians have been known for using surveillance methods to settle down their personal animosities, to persecute and punish political opponents, political Professor, Department of Laws, Punjab University, Chandigarh, Punjab, India. Assistant Professor, National Law University Delhi, New Delhi, India. 1DAVID LYON, SURVEILLANCE STUDIES: AN OVERVIEW, (2007). First published, Polity, Cambridge. 2 CASIHR Journal on Human Rights Practice [Vol. 1 Issue. 1] dissidents, etc. Survey operations in British India were a part of the “scientific ‘panoptican’ designed to provide the colonizers with a comprehensive network of surveillance and control over the Indian countryside and population.”2During colonial rule, the British notified certain categories of people as dangerous and born criminals on the basis of their birth, creed and caste. The tribes to which they belonged were branded as criminal tribes. In order to regulate and monitor the behavior of these people, the British colonists passed Criminal Tribes Act 1871. The legislation notified 150 castes as “hereditary criminals” and subjected them to police surveillance. The list was inclusive one. Any person intended to speak against the British administration, was an offender under this legislation. Under the legislation of 1871, the police had uncontrolled discretionary powers to arrest anyone in order to maintain law and order in the society. The arrested persons’ names, finger prints, and other identification were being recorded.3 If the modern welfare state misappropriates the modes of surveillance for satisfying its own political purposes and persecuting political dissents, it would not be incorrect to say that such so called ‘welfare governments’ shares the same characteristics as that of ‘totalitarian and authoritarian regimes.’ II. GOVERNMENT’S MASS SURVEILLANCE PROGRAMS THROUGH THE USE OF ADVANCED SURVEILLANCE TECHNOLOGIES Long years ago, when the government had very few resources and techniques of surveillance, the authorities were bound to collect limited amount of information on the individuals. But today’s government has broadened its power of surveilling the people, and is making dozens of personal dossiers on almost every individual while using the extreme capabilities of the most sophisticated surveillance technologies. Observation of physical activities, once reliant on naked eye observation and simple devices like binoculars, can now be carried out with night scopes and thermal imagers, sophisticated telescopic and magnification devices, tracking tools and “see-through” detection technology. Records of transactions with hospitals, banks, stores, schools, and other institutions, until the 1980s usually found only in file 2Kapil Raj, “Circulation and the Emergence of Modern Mapping”, in Claude Markovitset. al. (Eds.), Society and Circulation, , 23-54 at 24, (2006). 3S. Viswanathan, “Suspects forever: Members of the “denotified tribes” continue to bear the brunt of police brutality,” Frontline, Volume 19 - Issue 12, June 8-21, 2002, available at http://www.frontline.in/static/html/fl1912/19120450.htmaccessed on 13-6-15. 3 CASIHR Journal on Human Rights Practice [Vol. 1 Issue. 1] cabinets, are now much more readily obtained with the advent of computers and the Internet.4 In contemporary times, privacy destroying technologies, like video surveillance, location tracking, data mining, wiretapping, bugging, thermal sensors, spy satellites, X-ray devices, and more, have made a State, an Argus State. The government has become habitual in watching peoples’ behaviour, actions, tastes, preferences, choices, psychology, ideology, etc. Therefore, the mass surveillance has disturbed the equilibrium of privacy, disclosure, and surveillance.5 The law enforcement forces through sophisticated surveillance technologies are able to search our body, person, places, papers, documents, etc. from any place. While exploiting the extreme capabilities of the modern surveillance technologies, the law enforcement agencies can see us through our clothes, read our minds, know our whereabouts, listen conversations, know about our tastes, preferences, ideas, and opinions, political or religious ideologies, know about web history, chat history, etc. The law enforcement agencies also have a very easy access to the databases of the telecom service providers or other service providers, which store every detail of the subscribers. Increasingly, the law enforcement agencies have got wide, uncontrolled and unguided discretionary powers after the passage of legislations like the USA PATRIOT Act 2001 in the United States and the National Investigation Agency Act 2008 read with Information Technology (Amendment) Act 2008 in India. The law enforcement
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