Arghya Sengupta is the Founder and Research Director at Vidhi Centre for Legal Policy. He is an alumnus of National Law School of India University Bangalore and the University of Oxford where he was a Rhodes Scholar. While, at Oxford, he completed his D.Phil. on Independence and Accountability of the Indian Higher Judiciary and was a Lecturer in Administrative Law. He represented the State of Haryana and the Telecom Regulatory Authority of India (TRAI) in the ongoing ‘Aadhar privacy case’, the judgement of which is due tomorrow. For more of his thoughts on the same, you may access his articles on The Indian Express and LiveMint. (This interview was conducted by Swagat Baruah).
Do you think that policy design can effectively account for uncertainty regarding the policy’s effectiveness? Is it appropriate to think of laws as experiments?
Laws are experiments, although they must be carefully designed. A carefully designed experiment can go a long way in achieving the desired results. E.g. The Indian Penal Code, 1860 is a legislation that has stood the test of time despite having been initially seen, in many quarters, to be ill-suited for the purpose of ensuring law and order.
Vidhi Centre for Legal Policy is now engaged in a big project of Judicial Reforms, and so have you, having been personally, very well educated and informed about the Indian Judiciary. Have you found any significant issues regarding its functioning that we should be better aware of or that needs better understanding?
Judicial reforms is one of the most pressing problems of our time. In my opinion, the key issue within judicial reforms is neither appointments nor substantive power of the Supreme Court, as is commonly believed. It is instead, a problem of delay in the judicial system. At Vidhi, we have started the JALDI mission with the goal of clearing existing backlog of cases at all levels of the judiciary in three years time, and setting up systems by which a case in the first instance can be disposed of in six to eighteen months. I would encourage law students to research and study the problem of judicial delays in greater detail as a collective effort is required.
A much debated and revived topic after the election of the new government in 2014 has been regarding secularism. Now, in India, the Constitution doesn’t allow for a strict Jeffersonian ‘Wall of Separation’ between religion and the state. In India, the both must work in sync with each other, given the wide diversity that we have. Having said that, I’d like to know what your approach to secularism is and how you interpret Indian secularism as provided in our Constitution.
Indian secularism, as you rightly point out, has never been about separation of Church and State, as is the case of United States. Right from our founding, Indian secularism has been founded on the concept of “Sarva Dharma Sambhava”, equal respect for all faiths. The Constitution furthers this vision by ensuring freedom to preach, practice and propagate the religion of one’s choice under Article 25 of the Constitution. In this light, the State can and must certainly play a role in ensuring equal respect for all religions rather than stay off religion completely. This in my view is the ethos of Indian secularism.
Amongst the many pending references to Constitution benches of the Supreme Court, would you highlight two or three as matters raising very crucial Constitutional questions?
The right to privacy, which was recently the subject of hearing before a 9-judge Constitution Bench of Supreme Court is poised to be one of the most seminal constitutional law judgments of our times. In 2017, it is neither possible nor desirable for anyone to claim that there is no right to privacy. But as lawyers, the question arises as to whether a fundamental right to privacy adds anything to our constitutional discourse. Having argued the matter for the State of Haryana and the Telecom Regulatory Authority of India (TRAI), I am of the view that personal liberty in Article 21 of the Constitution is wide enough to encompass privacy concerns. Any free floating understanding of privacy divorced from personal liberty runs the risk of being overbroad. E.g. If Parliament were to pass a law making marital rape an offence, an overbroad understanding of privacy might allow a challenge to the constitutionality of such a law. While the law may still pass muster by virtue of being a reasonable restriction, the issue is one of principle: should there be such a right to privacy in the first place? The judgment of the Supreme Court in this matter will be a significant landmark in Indian constitutional jurisprudence and for life and liberty of ordinary citizens of the country.
If you like our content and would like to help us sustain our standard, make a donation and help us in a big way!