Satya Prakash

Tribune News Service

New Delhi, August 24

In a landmark verdict, the Supreme Court on Thursday declared right to privacy a fundamental right under the Constitution, saying it was “the constitutional core of human dignity”.“The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III (Fundamental Rights Chapter) of the Constitution,” a nine-judge Constitution Bench headed by Chief Justice of India JS Khehar ruled in a unanimous verdict.

Edit: Fundamentally right

Oped: Now, make privacy law However, the Bench clarified that like other fundamental rights, the right to privacy was not absolute and any encroachment will have to withstand the touchstone of permissible restrictions. A law to survive a challenge on the ground of violation of Article 21 must be fair, just and reasonable.Noting that informational privacy was a facet of the right to privacy and dangers to privacy in an age of information could originate from both the state and non-state actors, the Bench asked the Centre to put into place a robust regime for data protection. “The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state,” it said.(Follow The Tribune on Facebook; and Twitter @thetribunechd)“The legitimate aims of the state would include, for instance, protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits,” the top court said.The court said, “These are matters of policy to be considered by the Union government while designing a carefully structured regime for the protection of the data.”“Since the Union government has informed the court that it has constituted a committee chaired by Justice BN Srikrishna, former SC judge, for that purpose, the matter shall be dealt with appropriately by the Union government having due regard to what has been set out in this judgment,” it added.The verdict, which lays down the law on right to privacy, would have a bearing on petitions seeking to declare illegal Section 377 which criminalises gay sex. It will also affect the outcome of petitions challenging the ‘two-finger test’ conducted on rape victims.The government’s ambitious Aadhaar scheme will get impacted as petitions challenging it on the ground of violation of right to privacy would be decided by a smaller Bench separately on the basis of the law declared by the nine-Judge Bench.The verdict assumes significance in the age of social media, as individuals can claim constitutional protection for their data. It will also impact the outcome of petitions challenging the WhatsApp privacy policy pending before a five-judge Constitution Bench.The Bench said life and personal liberty were “inalienable rights”. “Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve,” the Bench said.The all-important ruling came on petitions filed by former Karnataka High Court Judge KS Puttaswamy, child rights activist Shanta Sinha, former bureaucrat and activist Aruna Roy, former Major General Dr Sudhir G Vombatkere and others who contended that right to privacy was a fundamental right and the Aadhaar scheme violated it.The nine-judge Constitution Bench specifically overruled two earlier verdicts that said right to privacy was not a fundamental right under the Constitution.In MP Sharma and others versus Satish Chandra, an eight-judge Constitution Bench had held in 1954 that right to privacy was not a fundamental right. A similar view was taken by a six-judge Bench in 1962 in Kharak Singh versus the State of Uttar Pradesh.It was on the basis of these two judgments that the then Attorney-General Mukul Rohatgi had asserted before the top court in 2015 that citizens didn’t have a fundamental right to privacy, inviting criticism from civil society and rights activists.But during the hearing, Rohatgi’s successor KK Venugopal had conceded that right to privacy was a fundamental right. He, however, had asserted that it was a qualified right and the government had a right to regulate it through a law.In all there were six separate but concurring verdicts. The CJI, who didn’t write one, pronounced the operative part of the verdict signed by all nine judges in a jam-packed courtroom at 10.39 am. Other judges on the Bench were Justices DY Chandrachud, J Chelameswar, SK Kaul, SA Bobde, RF Nariman, AM Sapre, RK Agarwal and Abdul Nazeer.LANDMARK VERDICT DECODED 
What it said

• The decision in MP Sharma case (1954), holding that right to privacy is not protected by the Constitution, stands over-ruled
• The decision in the Kharak Singh (1962) case, to the extent that it holds that right to privacy is not protected by the Constitution, also stands over-ruled
• The right is protected as an intrinsic part of right to life and personal liberty under Article 21 and as part of  freedoms guaranteed by Fundamental Rights chapter of the Constitution
• Decisions subsequent to Kharak Singh case, which say right to privacy is protected as an intrinsic part of the right to life and personal liberty, lay down the correct position in law.

Likely impact

Aadhaar scheme

Based on the law laid down by the nine-judge Constitution Bench, a smaller Bench would examine the validity of Aadhaar law and decide whether it violates right to privacy of individuals

Whatsapp privacy policy

A five-judge Bench is seized of petitions against it. Issues of right to privacy will be decided on the basis of the law declared by the nine-judge Bench

Homosexuality

Section 377, which criminalises gay sex, becomes vulnerable after right to privacy has been declared a fundamental right. Pleas seeking to declare this Section illegal pending before Curative Bench

Pornography

Petitions seeking a blanket ban on pornography will now face robust opposition as those opposed to it might seek to defend it on the ground of right to privacy

Two-finger test

Petitions challenging two-finger test on rape victims now have a better ground in the form of right to privacy

Lt Col Shrikant Prasad Purohit, who was granted bail by the Supreme Court on Monday in the 2008 Malegaon blast case, being taken to the Sessions Court from Taloja Jail in Navi Mumbai on Tuesday. PTI

Mumbai, August 22

A day after the Supreme Court granted him bail in the 2008 Malegaon blast case, Lt Col Shrikant Prasad Purohit said he wanted to rejoin the Army as soon as possible.”I want to wear my uniform. It is outermost layer of my skin. I am wedded to it. I am very happy to get back into the service of the best organisation in the country if not the world, the Indian army,” he told reporters outside a sessions court here.Purohit — whose bail formalities are yet to be completed — had been brought to the court for a hearing on framing of charges.”I have two families — the Army and my family which includes my wife, my two sons, sister and mother. I cannot wait to return to them,” he said.The Army didn’t “let me down”, said Purohit.”It’s been the tradition and ethos of the Army not to let down its men,” he said, adding, “I never even once felt that I was out of the Army.”He praised his wife for helping him in his legal fight.Asked if he will seek action against the Maharashtra Anti-Terrorism Squad for allegedly “planting (explosive) RDX on him”, Purohit said he was part of an institution, and if those claims were true, his “seniors” (in the Army) will deal with the matter.”I am too small a fry to fight this,” he said.Asked if he blamed anybody for his plight, the officer said no one was to blame but his “destiny”.”The Army is the only institution in the country which is not shaken by the ripples of what is happening in society,” he said.

Release likely tomorrow

He, however, will have to spend one more night in jail before he is released.Purohit was produced before the special NIA judge S D Tekale here today. The court is hearing the accused on framing of charges in the Malegaon blast case.In the afternoon, Purohit’s lawyers in Delhi approached the Supreme Court, seeking modification of bail conditions.”The SC accepted our request and allowed us to avail of cash bail instead of producing sureties,” said advocate Shrikant Shivde, Purohit’s lawyer.Purhoit’s lawyers then initiated the procedure for getting a release order, which the special NIA court issued in the evening.Police escorted Purohit back to Taloja jail near Mumbai a little after 6.30 pm. An Army vehicle had reached there to take Purohit, but it left after realising that he may not come out today as formalities for his release will take some more time.The apex court had yesterday granted bail to Purohit, who has been in jail for almost nine years for his alleged role in the 2008 Malegaon blast case.Six people were killed in a bomb blast on September 29, 2008 at Malegaon, a communally-sensitive textile town in Nashik district of north Maharashtra.The apex court said there were “material contradictions” in the charge sheets filed by the ATS and the National Investigation Agency (NIA), which were required to be tested at the time of trial. — PTI 

Tribune News Service

New Delhi, August 20

The Ministry of Defence today delegated greater administrative and financial powers to the Border Roads Organisation. This will increase financial powers of the decision-making authorities in the BRO.Functioning under the control of the Ministry of Defence since 2015, the BRO is engaged in road construction to provide connectivity to difficult and inaccessible regions in the border areas of the country.The decision is in line with bringing in transformational changes in the BRO.Various powers have been revised in the organisation. Earlier, a Chief Engineer in the BRO could give administrative approval of works only up to Rs 10 crore, that too only for departmental works, whereas the Additional Director General Border Roads (ADGBR) had the powers to accord administrative approval only up to Rs. 20 crore for departmental works. For contractual works, all administrative approvals were given by the DGBR, who had powers only up to Rs 50 crore.Enhancing the powers at all levels, the ministry has allowed the Chief Engineer to accord administrative approval of up to Rs 50 crore, ADGBR up to Rs 75 crore and DGBR up to Rs 100 crore.Similarly, the BRO needs modern construction. Earlier, the DGBR had powers to allow procurement of indigenous equipment costing up to Rs 7.5 crore and imported equipment worth up to Rs 3 crore.All other cases of procurement had to be referred to the Ministry of Defence.In order to fast-track the procurement of latest construction machinery and equipment in the BRO, the Ministry of Defence has enhanced the delegation of powers up to Rs 100 crore to DGBR for procurement of both indigenous/imported equipment.The ministry in consultation with the armed forces would identify the roads to be entrusted to the BRO and fix priorities.

FRENEMY: China’s approach towards India has always been aggressive.

Gen VP Malik (retd)

THE ongoing China-Bhutan-India confrontation at the Doklam grazing ground is characterised less by soldiers sitting eyeball to eyeball and more with bullying, threatening and disparaging language being used by China against India. With soldiers from both sides digging in, the consequences of this confrontation remain unpredictable.On China’s India-specific attitude, I will start with the Agreement on the Maintenance of Peace and Tranquillity along the Line of Actual Control (LAC) in the India-China Border Areas signed in1993. As a senior Army officer then, I was involved in discussions regarding military confidence-building measures with China, as well as advising Bhutan on the India-Bhutan-China border issues. Para 2 of the agreement stated: ‘The two sides agree to reduce their military forces along the LAC in conformity with the requirements of the principle of mutual and equal security to ceilings to be mutually agreed. The extent, depth, timing and nature of the reduction of the military along the LAC shall be determined through mutual consultations between the two countries. The reduction of military forces shall be carried out by stages in mutually agreed geographical locations sector-wise within the areas along the LAC.’ However, after the agreement, despite our best efforts, China backed out on the delineation or disclosure of its perception of the LAC, which had to be the start point for any troop reduction or relocation by either side. In 1996, during an official visit to China, I called on Gen Chi Haotian, then defence minister, and raised this issue. He not only brushed it aside, but also displayed his annoyance. I felt then — and do so now — that China wants to settle India-China boundary issue on its own terms, at some opportune time.China’s aggressive approach towards India began in the late 2000. It opposed nuclear exemption for India at the NSG, as it opposes India’s membership of the NSG now. Despite the political acceptance of Sikkim’s status within India, China has made attempt to create ambiguity on this issue. It started issuing ‘paper visa’ to travellers from J&K and Arunachal Pradesh. In the recent past, several incursions have been attempted in Ladakh. The Chumar incident took place when Chinese President Xi Jinping was being feted in India. China has refused to declare Masood Azhar as a global terrorist despite near unanimity in the UN on this issue.Beijing stopped bothering about India’s sensitivities when it began to use its economic and military clout to influence and wean away India’s South Asian neighbours. Its embrace of Pakistan has got tighter. China is now an integral part of India-Pakistan disputes. It took no notice when India objected to CPEC passing through the disputed territory of Gilgit-Baltistan, but felt insulted when India did not attend the OBOR jambooree in Beijing. With its string of pearls strategy, and CPEC entry to the Arabian Sea, its influence in the Indian Ocean and its littorals is expected to rise sharply.Doklam has been an ‘accepted’ disputed area between Bhutan and China since the 1980s. When China started road construction — a unilateral attempt to change the status quo in the area — Bhutan called for India’s help under the purview of India-Bhutan Friendship Treaty of 2007. India’s action is also in its own national interest. If allowed to be completed, this road would not only extinguish Bhutan’s claim over Doklam, but also improve Chinese reach to India’s narrow Siliguri corridor. Yet another obvious purpose is to dent the good relations between India and Bhutan.Now to the larger, global perspective of China. Paul Kennedy in his book The Rise and Fall of Great Powers stated that ‘Long-term shifts in economic productivity of nations are co-terminus with the increase or decrease of their global influence’. After developing its economy and military power, China is now emerging as a revisionist, expansionist and a combative power; its ‘peaceful rise’ stage seems to be over. Under Jinping, it is pursuing a strong domestic national identity and the dream of once again becoming the Middle Kingdom. China has running territorial disputes with many countries, including India, Japan, Taiwan, Philippines and Vietnam. In the process, it has started asserting dubious claims, bullying smaller nations and adopting a defiant attitude like the one on the International Tribunal award over the South China Sea.In redrawing borders and expanding spheres of influence, China is indulging in cartographic subjectivity. History and selective interpretation of colonial-era decisions are quoted in accordance with its own prerogatives — China rejects McMahon Line with India as a colonial era accord, but accepts this line as a boundary with Myanmar. And now it cites the 1890 Anglo-Sikkim Convention in the case of India-China-Bhutan tri-junction in Chumbi Valley.India has displayed accommodation and timidity in dealing with China’s numerous provocations — its territorial claims, encroachments, nexus with Pakistan, supporting insurgencies inside India, trade imbalance, violation of bilateral agreements and opposing India’s vital interests in multilateral forums. After Doklam, this attitude may change. Any display of weakness will not only encourage Chinese coercion and bluster, but also impact India’s relations and credibility in South, Southeast and East Asia. India will need to carry out a holistic review of its China policy.In the last two months, China has made several military threats. Keeping in view the nuclear status of both countries and geopolitical sensitivities involved, I doubt if there can be a high intensity India-China armed conflict. A major armed skirmish in Chumbi Valley is also unlikely. The geography here places serious operational disadvantage to China. The scope of any limited conflict/skirmish can be expected to shift to the less accessible areas in Ladakh, Central Sector or Arunachal Pradesh, where it has better mobility and logistic advantages. Yet, another option China could adopt is to restart helping India’s secessionist elements in the North-East and along the Siliguri corridor. Or to use its cyber capabilities to damage any national-level IT-enabled systems. It would then be able to cause greater intimidation without going to war.While preferring a solution through a dialogue on equal terms, India must be prepared for all eventualities. There is considerable asymmetry in power potential between China and India. Without getting into an arms race, India must start thinking strategically to cope with China’s power. Doklam is a wakeup call to look at our defence capabilities and infrastructure along the LAC and to review the long comatose military transformation.The writer is a former Army Chief 

• 

Chetan Kumar Cheeta

Havildar Giris Gurung

New Delhi, August 14

Two Army men, who sacrificed their lives during anti-terror operations, were among five security force personnel selected for the prestigious Kirti Chakra, the second highest peacetime gallantry award.On the eve of the 71st Independence Day, President Ram Nath Kovind approved 112 gallantry awards for defence and paramilitary personnel for making sacrifices in the service of the nation, the Defence Ministry said.Havildar Giris Gurung of Gorkha Rifles, Major David Manlun of Naga Regiment and Pramod Kumar, Commandant of 49 Battalion, CRPF, were chosen for the Kirti Chakra posthumously.(Follow The Tribune on Facebook; and Twitter @thetribunechd)Maj Preetam Singh Kunwar of Garhwal Rifles and Chetan Kumar Cheeta, CRPF Commandant, have also been selected for the award. No one has been awarded the Ashok Chakra, the highest peacetime gallantry award.The gallantry awards approved by the President, who is also the Supreme Commander of the armed forces, include five Kirti Chakras, 17 Shaurya Chakras, 85 Sena Medals (Gallantry), three Nao Sena Medals and two Vayu Sena Medals. On May 20, Havildar Gurung sacrificed his life during an anti-terror operation in Kupwara district of Jammu and Kashmir. Despite being grievously injured, he charged at a terrorist and fired at him, displaying extreme courage and dedication towards call of duty. Major Manlun was killed during an encounter with militants in Mon district of Nagaland on June 6. He was a role model for his colleagues as he always led from the front, the Army said.Major Kunwar has also been awarded the Kirti Chakra for showing grit and determination during an anti-terror operation in Jammu and Kashmir on May 25 during which he killed three dreaded terrorists.

CRPF Commandant Cheeta had slipped into coma after being hit by bullets during a gun fight with terrorists in Jammu and Kashmir earlier this year.Kovind also approved a President’s Tatrakshak medal, four Tatrakshak gallantry medals and two Tatrakshak meritorious service medals to Indian Coast Guard personnel.Navy personnel selected for the Nao Sena medal are Pushpendra Tyagi, Jaskaran Singh and Azhar Azharuddin.

The Vayu Sena medals will be conferred on Wing Commander Subhash Singh Rao and Wing Commander Ravinder Ahlawat. — PTI

• Havildar Giris Gurung of Gorkha Rifles (posthumously)
• Major David Manlun of Naga Regiment (posthumously)
• Pramod Kumar, Commandant of 49 BN, CRPF (posthumously)
• Major Preetam Singh Kunwar of Garhwal Rifles
• Chetan Kumar Cheeta, Commandant, CRPF

So Hafiz ‘Bhai’ now wants to further legitimize terror, its employment as a strategic tool, continue escaping the ban placed on him by various international organizations and nations and exploit the emerging political space in Pakistan. The formula for this is simple; just float a political party. Hafiz Saeed, the man in question here is commonly known as the Chief of the Lashkar e Toiba (LeT) now called the Jamat ul Dawa (JuD),  after the  US and later the UN bans  placed against him. The proposed party is to be named Milli Muslim League Pakistan. What is all this about why is he doing this?

It is not difficult to assess Saeed’s intent but a little background always helps. A nobody, he was picked out by General Zia ul Haq in early Eighties to be an Islamic studies teacher and thereafter made his way to Saudi Arabia where he came under the influence of returning mujahideen from Afghanistan and the Ahle Hadith sect. On return, along with Abdullah Yusuf Azzam, the mentor of Al Qaida he founded the Markaz Dawa-Wal-Irshad (MDI). Azzam was a rabid Palestinian heavy on jihad and Saeed’s orientation can be traced to him. In all probability the MDI was part funded by the ISI and part by elements of the Ahle Hadith, no doubt with sponsorship of Abdullah Azam. It became the ideological element for the launch of so called jihad in J&K. In 1990 it gave rise to the Lashkar e Toiba (LeT) again inspired by the needs of the ISI based on the grandiose plans of Zia ul Haq to launch a war of a thousand cuts against India. The LeT formed the militant arm of the MDI and has undergone change of name more times than one can remember due to international bans and sanctions against it.

It has taken long for Saeed to realize that he could be a rabble rouser and a ‘friendly terrorist’ for the larger Deep State as long as he was useful to the ISI. With the changing political environment of Pakistan, uncertainty about the political dispensation after next year’s general elections and the fickle state of the world order, wherein alliances are yet un-cemented, being just the head of a friendly terrorist organization may not be enough in terms of lasting capability. The idea that his organization, with its ideological arm of the MDI and the militant arm of the LeT (JuD) would exercise no genuine power and continue to act at the whims of the state has dawned on him rather late. Possibly his faculties were dulled by the street power that the MDI can today exercise in terms of recruitment rallies and fund raising campaigns. This realization has led him to believe that without a political face to his organization he would always be at someone else’s mercy. Direct power can only be exercised through the political route and an opportunity seems to be emerging on Pakistan’s political canvas. The Bhutto inspired Pakistan People’s Party (PPP) is a pale shadow of the past and the Pakistan Muslim League (PML), the property of the Sharif family, has clearly got the ire of the Pakistan Army. Imran Khan’s Tehreek e Insaaf (TeI) hardly has pan Pakistan reach and Imran’s own personal reputation is questionable. In Oct 2016, Pakistan daily Dawn reported that a PML-N lawmaker, Rana Muhammad Afzal had questioned why Saeed was being mollycoddled at the cost of Pakistan’s international image and the inability to withstand criticism of the JuD’s role in Kashmir. Saeed’s appreciation of the situation probably led him to conclude that before many more Rana Afzals emerge to question his credentials it was safest to create a political space for himself.

It is unknown whether MDI/JuD combine can pass muster to register as a political party in Pakistan’s yet to mature political system but clearly what Saeed is looking for is an escape route and greater legitimacy to protect his fiefdom which he has created with much care. If a Prime Minister of the main party from heartland Punjab could be brought down by the Supreme Court so could Saeed’s empire wither at orders of someone in authority who found him no longer useful.

There is no guarantee that Saeed’s move will take him through to a position of political legitimacy. If it does then the next question will be whether it will translate into seats. Pakistan’s electorate has shown a penchant for electing ‘feudals’ but not radicals. However, in five years much has changed in the Islamic world and after Mumtaz Qadri gained iconic status as the assassin of  Punjab Governor Salman Taseer what can one say of Pakistan and its electorate.

For India, the acceptance of the JuD/MDI as a political party under the Pakistan Constitution will give one more piece of evidence of the state involvement in the proxy activities in Kashmir. However, given the geo-strategic importance that international players accord to Pakistan, the evidence is likely to remain lost in the maze of the grey zone that Pakistan has successfully created in relation to its dubious activities.                                  

New Delhi, August 4

The Army has formulated a policy on the use of social media by its serving personnel which lists out dos and don’ts, the government said on Friday.

In a written reply to a question in the Lok Sabha, Minister of State in the Defence Ministry Subhash Bhamre said the guidelines have been issued primarily to ensure security of information and avoid its manipulation or distortion.

“The Indian Army has promulgated the policy on the use of social media by serving Army personnel, organisations which list out the dos and don’ts guidelines and content which are barred from being posted on social media platforms,” Bhamre said.

He said violations of above guidelines are investigated by the units and formations concerned.

The social media policy comes in the backdrop of reports about soldiers airing their grievance on social media.

Following such complaints, the Army also came up with a WhatsApp number where soldiers can post their problems which will be directly addressed to Army chief Gen Bipin Rawat instead of going to social media.

In response to another question, Bhamre said 14,63,512 youths applied to the Indian Army since 2014.

He said, replying to another question, a panel has been set up to examine and give their recommendations on the changes in the promotion policy and Quantified System of Selection (QSS) for officers of the Army.

The two-member panel comprises retired Army officers Lt Gen G S Khatoch and Lt Gen A K Ahuja. PTI

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