I miss the surveillance! Please tap my phone again?

Little BugFew months ago I was approached by relatives of a person arrested and lodged in Jail with request to represent him. There were severe, albeit contradictory allegations that he had active links with terrorists. His arrest and other events are a different story which is documented elsewhere. Here I share my experience of benefits from phone tapping.
The moment I had a few telephonic calls with these relatives, whose phone were under surveillance (a euphemism for tapping), my phone was also tapped. A few hours later my associate’s phone were also tapped.

How we discovered the tapping?

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Evolution of Law of Privacy

History of Origin of concept of Privacy

Persecution of human races: (A Preface)

Might is right. This was the official motto of existence on earth and till this date, it continues to be the actual rule of existence. The only difference from dark ages and today is that now physical might has been replaced with various type of authority. We have invented numerous way to dominate others and we continue to invent new technologies to expand the domination. Freedom was and is an illusion. Words like Religion and God were such earlier tools of domination, which is now joined by Psychology and the list is endless.

Heresy:

In 12th century Roman Catholic Church became very aggressive in enrollment of new followers and in purging the non believers. The church was custodian of a divinely imparted revelation which it alone was authorized to expound under the inspiration of the Holy Spirit or the holy ghost. Which is the third personality in Christian Trinity.
Any criticism of official interpretation made by church, on any subject, was heresy and heretical person was liable to be purged.

Inquisition by Church

In 1184 Pope Lucius III, authorized a process of inquiry to combat heresy. the Bishops were authorized to make inquiries in their dioceses. In 1227 Pope Gregory IX started independent persons as Inquisitors who had authority over everyone except bishops and their officials. In 1252 Pope Innocent IV authorized these Inquisitors to engage henchmen to torture people.
The procedure adopted by these Inquisitors was anything but not Due Process recognized later. It was persecution of innocent people who were compelled to deny anything that according to Inquisitors was heresy. Remember Galileo, he was kept under house arrest till he died. They employed every method to extract confession, public ridicule, imprisonment, solitary confinement and torture to select a few. Murder and Burning alive were also not uncommon.
Since church was an Independent Authority acting under the Trinity of God, his son and Holy Spirit, the Due Process guaranteed by King had no effect. Rather the King could always approach church to control erring citizens.
This situation continued until about seventeen century.

Bill of right:

In 1689 the enactment of Bill of rights, and availability of Habeas Corpus to all coupled with the unpopularity of Church activities, a New Era or respect for human life begin.

Privacy as Fundamental Right:

US Courts as also Indian Courts have attributed different reasons and logic to protect individual liberties especially Privacy. It is my understanding that the above background has not been taken into account by the courts and it is for this reason, privacy has become a misunderstood concept. Some time it is a weapon to proclaim individuality or an inconvenience for Governments to do the same things which inquisitors were doing in Middle Ages.

United Nations Charter:

According to Universal Declaration of Human rights adopted by United Nation in its General Assembly in 1948 “Everyone has the right to life, liberty and security of person.” Further article 12 of Declaration provides:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

United States of America

The Constitution of United States was first to recognize the right of privacy from the intrusion of the State. Privacy is recognized in the Fourth Amendment of US constitution as under:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The reason given for aforesaid amendment is that founding fathers were smugglers and were seriously affected by Writ of Assistance, may be true or may be not but is not the only reason.

Position in India

Historically India has no known concept of privacy. In its 500 years of recurrent invasion and thereafter 450 years of foreign rule (first by Mughals and then by Britain), people have accepted the intrusion by State as part of life. However the Modern and Recent views are rather different. In India, relevant clause of the Constitution is Article 21 which is as under:

No person shall be deprived of his life or personal liberty except according to procedure established by law

the Supreme Court of India has interpreted article 21 and has held that right to life means Right to live with Dignity and therefore privacy is an integral part of Right to Life. This interpretation is more in tune with German Ground or Basic law ‘Grundgesetz für die Bundesrepublik Deutschland‘ which came into force in 1949 and its Article 1 states that:

Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

However the courts while deciding various cases seems to be in jinx of thought. May be because the above process of evolution is now a distant history. We shall soon enter into the discussion about these decided cases in another post.

© Sandeep Bhalla

Due process of law in 1354, 1772, 1791, 1955, 1973, 2008 and 2012!

None shall be condemned without Due Process of Law.

Due process is the right to be treated fairly by law. Right of Personal Liberty to a common man who is neither Nobel, Aristocrat, Royal or Rich was conferred very late in the west. Following is the earliest known concept to England:

“That no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.
( See: Liberty of Subject (1354) CHAPTER 3 28 Edw 3. The STATUTE of The Twenty-eighth Year of King Edward III.)

Original text of 28 Edw. 3; borrowed from: http://www.legislation.gov.uk/

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Scope of freedom of expression

Dark Art

No freedom is absolute.

My freedom ends where the tip of your nose starts. There is only one principle of fairness: I should not do something against a person which I would not expect that person to do against me.

Cape Town artists Brett Murray has painted a 1.85m-high painting titled “The Spear” in which he has depicted President Jacob Zuma with his genitals exposed. …. The government was calling on the gallery to take down the painting and wanted the media to stop publicising it, said Manyi. Arts and Culture Minister Paul Mashatile said he respected artists’ works and upheld their right to freedom of expression, but asked that they respect the rights of others. …..”This picture is offensive and disrespectful not only to an individual, but to the democratically elected President of South Africa and therefore to the whole country and the people of South Africa,” Cosatu said. (Source: http://www.thenewage.co.za/51152-1007-53-Zuma_painting_against_Ubuntu_African_morality_culture)

I hold no tender feelings for politicians but I was curious why he depicted Zuma in this way. What is the background. Whatever may be provocation, if this is freedom of speech, then right hurl abuses towards those in power, must be elevated to fundamental right and family members of person abused must be forced to hear the abuses in exercise of this right. This is perversion of art for political revenge. It really leaves bad taste . It is cheap way to seek publicity and must be deprecated.

© Sandeep Bhalla

Failed Generation, Solar Films and VIP’s

Short analysis of Supreme Court’s unreasonable decision to ban the use of solar films on cars in India.

It is very rare for judges to reach out of their Ivory Tower and express about the ground realities of life. In one such rare occasion, recently Supreme Court judge G S Singhvi speaking at a seminar observed:

“It is sad to say that my generation has failed the nation. In a country where 700 million people live below the poverty line, we tend to talk about justice. We talk about our fundamental rights being trampled upon but what about those people who do not get two square meals a day, have no right to education, shelter, clothing and other basic amenities. The country is divided into rural and urban and the idea about equality and fraternity needs to be pondered about and the entire process of development had taken place at the cost of rural people  ……….. I feel guilty when I read about equality and fraternity and think about the labourers and farmers who have made our lives comfortable and easy. The ‘jan sevaks’ (Public Servants) are fast becoming our masters, the first citizens followed by the rich and the poor only as third class citizens.”  (Source: http://m.timesofindia.com/Young-lawyers-facing-multiple-challenges-Supreme-Court-judge/articleshow/13112646.cms)

Constitutionalism in India means that people’s sovereignty is supreme and unlimited and the constituents of the state have limited powers.” (Source: http://articles.timesofindia.indiatimes.com/2012-02-26/nagpur/31100894_1_culture-guest-lecture-justa-causa)

The problem is that we all know about the failures. But what will take it to put into practice? What about the class called VIP’s? Who are they and why they are VIP’s? Problem is that only thing we see in focus is MONEY and DOMINATION. All we have to do is to do our own work diligently, even if some time, the reciprocation is not fair. It is not easy but practice can make anyone perfect. I will misquote Gandhi: ‘When you do something, remember the face of the poorest of poor’.

As regards the second part, it is another story. While Constitutionalism means Rule of law and not Fiats issued at Will; another decision of Supreme Court nearly rubs it on wrong way. Following direction has been given by Supreme Court:

We have no hesitation in holding that use of black films or any other material upon safety glass, windscreen and side windows is impermissible. In terms of Rule 100(2), 70 per cent and 50 per cent VLT standard are relatable to the manufacture of the safety glasses for the windshields (front and rear) and the side windows respectively. Use of films or any other material upon the windscreen or the side windows is impermissible in law. It is the VLT of the safety glass without any additional material being pasted upon the safety glasses which must conform with manufacture specifications. ….. The competent officer of the traffic police or any other authorized person shall challan such vehicles for violating Rules 92 and 100 of the Rules with effect from the specified date and thereupon shall also remove the black films from the offending vehicles. (Full judgment is here.)

The supreme court of india. Taken about 170 m ...

The supreme court of India. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

By one stroke of pen, an entire industry has been struck off. I wonder if they were a party to it. If not then it is violative of principles of natural justice. It beyond logical comprehension that if Manufacturer does not apply tinted glasses, I can not apply solar film to it? Off course it must meet statutory standard. Merely because law enforcement agency do not have technical equipment, all films are to be removed. By same logic why not every person be kept in lock and key at night as most crimes are committed at night. Curfew will be even better. Passes can be issued to VIP’s to wander at night, under Rules. Yes ban the liquor/Alcohol. A large number crime are committed under its influence. Licenses can be issued to VIP’s for that as well.

Judgment relies upon the practice of not using films in countries where the maximum temperature never exceeds 25 degrees. Here it touches 48 degrees centigrade every summer. In fact the word ‘weather’ does not even occurs in the judgment. The very basis of applying solar films is missing. Thus the judgment shall be hit by Wednesbury’s arbitrariness as it excludes an important and relevant fact from consideration while deciding an issue and therefore is not a reasonable judgment. Those interested in full judgment of Wednesbury’s case, can find it here. Some other arguments have been raised by another Gentleman here and therefore are not repeated.

Another legal issue is that this order has been passed under article 32 of Constitution and is purported to enforce article 21  of Constitution in a Public Interest Litigation (PIL). Article 21 guarantees right to life to every citizen. If today a Habeas Corpus petition is filed in Supreme Court saying that life of a girl is in danger, Supreme Court will not entertain that petition and ask the party to go to respective High Court. Was solar film matter so important that Supreme Court could not have waited for the opinion of High Courts?

Now a days, if there is a stray cow sitting upon a pavement, people joke that it has a stay order from Supreme Court or High Court in a PIL on animal rights. So much for PIL fiats.

P.S.: As for me, I have tinted glasses in my car. I never needed solar film, but now I think I will have black curtains and would have a feel of a VIP. Is there any rule against curtains?

© Sandeep Bhalla