Letter written on 17th October, received on 25th October 2017
I am frightened to think of coming winter. Already I am shivering with continuous fever. I do not have a blanket. I do not have a sweater/jacket. As temperature goes down excruciating pain continuously in my legs and left hand increases. It is impossible for me to survive here during the winter that starts from November. I am living here like an animal taking its last breaths. Somehow 8 months I managed to survive. But I am not going to survive in the coming winter. I am sure. It is of no use to write about my health any longer.
In any case, please finalise the senior counsel by or before the end of this month. Then inform Mr. Gadling to file my bail application in the first week of November or last week of October itself. You remember if this is not done in this way, my situation will be out of hands. I am not responsible. I am making clear to you. Hereafter I am not going to write about it any longer.
You should talk to Mrs Rebeccaji and Nandita Narain. You also talk to Prof. Haragopal and others. Explain the entire situation. You need to hurry up. I am feeling so depressed for requesting you all so many times like a beggar, a destitute. But none of you are moving an inch, no one understand my present condition. No one understands 90% disabled person is behind bars struggling with one hand in condition and suffering with multiple ailments. And no one cares for my life. This is simply criminal negligence, a callous attitude.
Please take care of your health. Your health is my health and entire family’s health. There is no one else to take care of your health for now. Till I am in your presence, you have to take care of your health without any negligence.
Lots of love
Sai letter abstract 9th October 2017
Kannabiran wrote in his book that all prisoners should have all freedoms except for the freedom of movement. V.R. Krishna Iyer in one of his judgements wrote the same. In that judgement he argued that the difference between Rigorous Imprisonment and simple Imprisonment should be done away with by substituting with simple imprisonment. These judicial principles are never implemented anywhere in the country.
In the recent Supreme Court judgement on Privacy, the 9-judges constitutional bench enumerated 15 fundamentals rights discovered by the Highest Court in the “dark matter” of the Indian constitution in addition to the clearly pronounced Fundamental rights. More than half of these 15 fundamental rights directly relate to the prisoners. Justice D.Y. Chandrachud enlisted all these 15 Fundamental rights in the judgement. 1. The right against solitary confinement, 2.The right to legal aid, 3. The right to speedy trail, 4.The right of prisoners against various fetters, 5.The right against handcuffing, 6.The right against custodial violence, 7.The right against public hanging, 8.The right to doctors’ assistance at government Hospitals, 9.The right to freedom from torture, 10.The right to compensation for unlawful arrest and 11.The right to healthy environment. The other four are 1.The right to go abroad, 2.The right to shelter, 3.The right to representation, 4.The right to earn the livelihood.
These 15 fundamental rights discovered and recognized by the Supreme court of India in the “dark matter’ of the Indian constitution in the last 50 years or so haven’t been implemented. Now I wonder what will be the fate of the 16th fundamental right that is the right to privacy. Now this fundamental right to privacy is not granted by Supreme Court to the Citizens of India. It is only discovered and recognized as a right natural to all citizens by birth as human beings. Therefore, it is inalienable right to all human beings. But the problem is even before a fundamental right is recognized constitutionally the possible contours of limitations to be imposed on it by the wings/arms of the State were discussed and such limitations have been carved out. All fundamental rights enshrined in the constitution face the same fate of indelible limitations or restrictions. Under the shackles of such restrictions most of these rights lose their meaning. The sovereign power of the State submits the individual to its domain. The individuals’ voluntary submission of certain of her or his rights as a part of the “social contract” to recognize the power of the State as against the anarchy of ‘free flowing’ individuals in mutual conflict becomes absolute submission to the beast called ‘Leviathan’. In the post enlightenment Britain, Mathew Arnold argues for further submission of individual freedoms of the English citizens, though with the hidden agenda of suppression of the freedoms of the workers and women, who were vociferously demanding for their rights in the 19th century England.
In the absence of the community rights as against State’s absolute sovereign power over the individual, the rights become highly restricted or suffocating. The ‘individual self’ created by the bourgeois capitalist society could not resolve this contradiction. What I mean is that the individual in the absence of his community (erased by the capitalist order) has been constructed as a sovereign individual. If the individual is not sovereign, he or she is not an individual in the true sense of a bourgeois individual. If the capitalist State is not absolutely sovereign, it can’t exist as one. Therefore, each individual is perpetually fitted against the very State her or she is a part of and a universal contradiction is established like that of another fundamental contradiction of the modern society that is capital vs. labor.
The question of civil, human and democratic rights came up around the debate of the right to the privacy as a fundamental right before and after the Nine judges bench delivered its verdict. Unfortunately I could not find an engaging debate by the civil and democratic organizations, though important issues could have been debated around the right to privacy judgement and the arguments put forward by various senior counsels before the bench of judges. I think the judgement itself still provides an enormous space to raise important questions regarding the civil and democratic rights particularly in the context of 11 of 15 fundamental rights (or all 15) being recognized constitutionally. From within the high walls of the prison I must have missed the debate excepting through three English newspapers that I have access to after censored news.
Right to privacy in my understanding emerges as a right only in the context of the rise of human being as an individual. During the pre-capitalist societies like feudal and communitarian social orders or in slave system, such a consciousness to the right to privacy was impossible. At the time of framing the Indian constitution the importance of this right was not recognized. Now the Supreme Court’s interpretation of the declared fundamental rights gives rise to recognition of the right to privacy as a fundamental right in the backdrop of the cyber security, data security and the privacy on the net which created a crisis in the society. In other words, the contradiction that arose between the worlds of the reality and virtuality pushed the highest court to recognize the right to privacy as fundamental right. This right should have been recognized as a part of the rise of individual as a distinct and unique personality. But the limitations to the emergence of such a ‘private person’ in the Indian society, (notwithstanding a small section that doesn’t succumb to the family, caste, religion, community, etc) at large accommodated the non-recognition of the right to the privacy, though some sense of privacy right exist at the back of the mind through some vague codes of law. The social structure that remained unchanged to a large extent for such a long period of time is the main question. For all of us when we try to understand the nature of democratic rights of the individuals to whom right to liberty and privacy is important.
There has been no vibrant struggle visibly for the right to privacy as a specific right in our society despite the fact that it has been inherent in the larger social movements for the civil and democratic rights of the oppressed and the marginalized section of the society. Without the right to privacy as an axiomatic right, all other democratic rights can’t be realized. Similarly Right to Liberty, equality, freedom of speech, freedom to associate etc, originated from the individuals choice to exercise his/her free will of the internal core of a personality with a strong agency. But these rights don’t blossom to a meaningful extent without the larger democratic rights (includes political rights) in existence abundantly in the social sphere. With caste, patriarchy (of feudal and capitalist) and religion as hegemonic institutions of social power, the larger notions of democratic rights don’t flourish particularly when the State as institution of overarching power is embedded with caste, patriarchy, religion, etc. In that sense, I understand that the Supreme Court’s recognition of the right to privacy of an individual still remains unfulfilled and unrealized for the flowering of democratic rights is a necessary pre-condition for the individual to exercise his or her right to privacy which our society lacks as much as right to privacy is an absolute requirement for the further development of democratic rights.
In any case, I feel that this judgement has created a space to expand the struggle for democratic rights. Any right or freedom acquires fruitful meaning only when the last man or woman, who is left behind at the last rung of the social order can exercise it without any restrictions. Otherwise, it becomes elicit and esoteric. The basic concepts of any of these rights are modern in nature as the modern individual can only exercise these rights. The vast majority of the people in our society are kept away from modernity. The use of a mobile instrument or a TV set by these people doesn’t indicate their modernity. A modern individual is a self-sufficient autonomous entity, who could test the validity of her or his right confronting the State that always tries to usurp the rights. A sovereign individual should have the space to take on the State power when tested his or her rights. That is the modern State or modern individual in the bourgeois sense. When an individual is made an absolute subservient to the State, we have no modern State or modern individual. Gauri Lankesh is certainly a modern individual but when she tested her rights and her fellow citizens’ rights against the State power, she is made to disappear permanently. We are left with no modern State or modern individuals in her assassination.