11. See, e.g., (albeit in a slightly different context), Solon Barocas & Andrew D. Selbst, ‘Big Data’s Disparate Impact’, (2016) 104 California Law Review 671, 699, asking us to imagine ‘the model as the decision-maker’.
12. The DNA Technology (Use and Application) Regulation Bill, 2018, available at http://www.prsindia.org/uploads/media/DNA/DNA%20Bill,%202018.pdf.
13. See, e.g., Suraj Yengde, ‘There’s a caste bias in our prison system—And we need to talk about it now’, Huffington Post, 23 March 2017, available at https://www.huffingtonpost.in/suraj-yengde/theres-a-caste-bias-in-our-prison-system-and-we-need-to-talk-ab_a_21662007/. The National Crime Records Bureau publishes prison statistics on an annual basis. See, e.g., http://ncrb.gov.in/statpublications/psi/Prison2015/PrisonStat2015.htm.
14. Sheldon Krimsky & Tania Simoncelli, Genetic Justice: DNA Data Banks, Criminal Investigations and Civil Liberties 152 (New York: Columbia University Press 2011).
15. For a set of examples demonstrating the link between methods of data collecting and processing, and substantive equality, see Barocas & Selbst, ‘Big Data’s Disparate Impact’, supra.
16. Ibid., 153.
17. Eubanks, Automating Inequality, supra, 153. It is also argued that using DNA profiling to predict racial characteristics (of, say, a suspect) will only reify the concept of ‘race’, which has no independent existence outside of being a social construct. See Krimsky & Simoncelli, Genetic Justice, supra, 273.
18. See, e.g., Gaurav Bhatnagar, ‘Aadhaar and hunger: Second Jharkhand woman starves to death after being refused rations’, The Wire, 2 January 2018, available at https://thewire.in/food/aadhaar-hunger-jharkhand-starvation-death-rations.
19. Alok Pandey, ‘Homeless in UP denied night shelters without Aadhaar, “What do we do?”, they ask’, NDTV, 13 January 2018, available at https://www.ndtv.com/india-news/homeless-in-up-denied-night-shelters-without-aadhaar-what-do-we-do-they-ask-1799513.
20. Eubanks, Automating Inequality, supra, 195.
21. Akshay Deshmane, ‘The Dalit Identity Dilemma’, Frontline, 28 April 2017, available at https://www.frontline.in/cover-story/the-dalit-identity-dilemma/article9629313.ece.
22. Vance Packard, ‘Don’t tell it to the computer’, The New York Times Magazine, 8 January 1967, available at http://simson.net/ref/1966/Packard_Privacy_Stuff.pdf.
23. The Genetic Information Non-Discrimination Act, 2008.
24. United India Insurance Co Ltd v. Jai Prakash Tayal, RFA 610/2016 (High Court of Delhi). The judgement was inexplicably stayed on appeal by the Supreme Court without any reasoned order, and has not (to the author’s knowledge) been decided yet.
25. Eubanks, Automating Inequality, supra, 194.
26. Anand Venkatanarayanan, ‘Fingerprints, Aadhaar and Law Enforcement – A deadly cocktail is in the making’, The Wire, 16 August 2018, available at https://thewire.in/tech/aadhaar-fingerprints-ncrb-police-investigations.
27. See, e.g., written submissions on behalf of K.V. Viswanathan, available at www.livelaw.in.
28. Anand Venkatanarayanan, ‘Fingerprints, Aadhaar and Law Enforcement – A deadly cocktail is in the making’, supra.
29. Id.
30. Id.
31. Id.
32. Towards the end of August, it was announced by the UIDAI that facial recognition would be introduced in a ‘phased manner’ from the middle of September, starting with mobile phone companies.
33. Eubanks, Automating Inequality, supra, 122.
34. Krimsky & Simoncelli, Genetic Justice, supra, Ch. 2.
35. Id., for an account of US case law on the subject. The fact that many modern algorithms are based on extracting sensitive information from publicly available data suggests that the underlying assumption is that we do not retain our privacy rights over such data, which is, of course, contrary to the right-to-privacy judgement of the Supreme Court in Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
36. Eubanks, Automating Inequality, supra, 195. See also Lilian Edwards & Michael Veale, ‘Enslaving the Algorithm: From a “Right to an Explanation” to a “Right to Better Decisions”?’, (2018) 16(3) IEEE Security and Privacy 46: ‘Because algorithms are trained on historical data, they risk replicating unwanted historical patterns of unfairness and/or discrimination.’
37. Cynthia Dwork et al., ‘Fairness through Awareness’, arXiv:1104.3913 [cs.CC] (2011).
38. See, for example, the provisions of the EUGDPR.
39. Edwards & Veale, ‘Enslaving the Algorithm’, supra.
40. Gaurav Bhatnagar, ‘Javadekar’s 80,000 “Ghost” teachers: Activists, MHRD, Dispute Status of Probe’, The Wire, 13 May 2018, available at https://thewire.in/education/no-probe-on-javadekars-claim-that-80000-ghost-teachers-detected-in-higher-education.
41. Eubanks, Automating Inequality, supra, 77.
42. Cynthia Wong, ‘We underestimate the threat of facial recognition technology at our peril’, The Guardian, 17 August 2018, available at https://www.theguardian.com/commentisfree/2018/aug/17/we-underestimate-the-threat-of-facial-recognition-technology-at-our-peril.
43. Justice K.S. Puttaswamy v. Union of India, supra, ¶263 (dissenting opinion of Justice Chandrachud).
44. Edwards & Veale, ‘Enslaving the Algorithm’, supra.
45. Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Cambridge: Harvard University Press 2015).
46. Edwards & Veale, ‘Enslaving the Algorithm’, supra.
47. See, e.g., Cathy O’Neil, Weapons of Math Destruction: How Big Data Increases Inequality and Threatens Democracy (New York: Crown 2016).
48. For a summary of the debate, with citations to the relevant scholarship, see Vidushi Marda, ‘Machine Learning and Transparency: A Scoping Exercise’ (22 November 2017), available at SSRN: https://ssrn.com/abstract=3236837.
For a detailed and technical account, which focuses as well on the broader issue of the limits of transparency in solving algorithmic discrimination, see Joshua A. Kroll et al., ‘Accountable Algorithms’, (2017) 165 University of Pennsylvania Law Review 633, 647–650, 657–660.
49. Solon Barocas & Andrew D. Selbst, ‘Big Data’s Disparate Impact’, (2016) 104 California Law Review 761.
50. Justice K.S. Puttaswamy v. Union of India, supra, ¶3 (dissenting opinion of Justice Chandrachud).
51. Common Cause v. Union of India, WP (Civ) No. 215/2005.
52. Id., ¶153.
53. See Gautam Bhatia, ‘Under a Humane Constitution’, The Hindu, 12 March 2018, available at https://www.thehindu.com/todays-paper/tp-opinion/under-a-humane-constitution/article23043291.ece; see also Gautam Bhatia, ‘Round-Up: Constitution Bench Judgments on Assisted Dying and Parliamentary Standing Committee Reports’, Indian Constitutional Law and Philosophy, 29 June 2018, available at https://indconlawphil.wordpress.com/2018/06/29/round-up-constitution-bench-judgments-on-assisted-dying-and-parliamentary-standing-committee-reports/.
54. Walter Benjamin, ‘On the concept of history’, I:2 Gesammelte Schriften (Frankfurt: 1974), available at http://members.efn.org/~dredmond/ThesesonHistory.html.
Index
A.K. Gopalan v. State of Madras
A.K. Roy v. Union of India
A.N. Rajamma v. State of Kerala
Aadhaar case, technological self-determination and the future of transformative Constitution
Ackermann, Justice
Ad-Dharmi Movement
ADM Jabalpur v. Shivakant Shukla
adultery provision
affirmative action and reservations. See reservations
Ahmed, Naziruddin
AIDS
Air India v. Nargesh Meerza
Aiyar, Justice Venkatarama
Ali, Justice Fazl
All India Women’s Conference (AIWC)
Allahabad High Court
Ambedkar, B.R.; Annihilation of Caste
American labour movement
American Revolution
Amrit Kaur, Rajkumari
Ananda Margis
Andhra Pradesh High Court
Andhra Pradesh: interlinked resident database
Anglo-Indian administration of criminal justice
anti-terrorism laws
Anuj Garg v. Hotel Association of India; and the anti-stereotyping principle; and the future of transformative Constitutionalism
Armed Forces Special Powers Act (AFSPA)
Articles of the Constitution
Article 10
Article 13
Article 14
Article 15
Article 16
Article 17
Article 18
Article 19
Article 20
Article 21
Article 22
Article 23
Article 24
Article 25
Article 26
Article 27
Article 28
Article 29
Article 30
Article 32
Article 37
Article 39
Article 40
Article 41
Article 46
Article 50
Article 142
Article 326
Arup Bhuyan v. State of Assam
Asian Games Village
automated: decision-making tolls; eligibility systems; identification systems
automation bias
Ayyangar, Justice
Ayyar, Alladi Krishnaswami
Azad, Chandrasekhar
backward classes
backwardness, criteria
Baer, Susanne
Bahishkrit Bharat
Bahishkrit Hitkarini Sabha
Balaji, M.R.
bar dancing, banned by Supreme Court
Baxi, Upendra
BEAP (brain electrical activation profile or brain-mapping) test
Beg, Justice
Begampura
begar
Bengal Regulation
Berlin, Isaiah
Bernstein v. Bester
Bhakti movement
Bhargava, Pandit Thakurdas
Bhargava, Rajeev
Bhat, Justice S. Ravindra
Bhattacharjee, Justice A.M.
bigamy
biometric authentication
Bombay Cooperative Societies Act
Bombay High Court
Bombay Legislative Council
Bombay Prevention of Beggary Act
Bombay Prevention of Excommunication Act
Bombay Regulation
bonded labour
Bose, Justice Vivian
Bose, Kumudini
brain-mapping. See BEAP
Brandeis, Justice
Brennan, Justice
bribery and corruption
British Regime: colonial common sense; criminal jurisprudence system; doctrine of ‘non-interference’ with ‘personal laws’; and the permanent state of exception; the nationalist response
C.A. Rajendran, v. Union of India (1968)
Cabinet Mission Plan, 1946
Calcutta High Court
Canada; Charter of Rights and Freedom; constitutional courts; Supreme Court
capitalism
carnal intercourse, criminalized by Indian Penal Code
caste, caste system; blindness and the early Supreme Court; disputes; based practice of exclusion; based segregation;—in schools
Central Board of the Dawoodi Bohra Committee v. State of Maharashtra
Central Reserve Police Force (CRPF)
Chandrachud, Justice Y.V.
Chatterjee, Partha
Chattopadhyay, Bankim Chandra
Chaudharani, Saraladevi
Chelameswar, Justice
Chhattisgarh Vishesh Jan Suraksha Adhiniyam
child abuse, state interference
child labour
child marriage
Child Marriage Bill
Choudary, Justice P.A.
citizenship
civic equality and the transformative constitution
civil liberties
civil rights; and the economic structure, relations; erosion; Indian Medical Association (IMA) and horizontal discrimination; jurisprudence
Claire L’Heureux- Dubé, Justice
class-based representation
Code of Civil Procedure (1908)
cohabitation, decree for
Coke, Edward
colonial. See British Regime
colonialism, apartheid, and patriarchy
colour blind equality
Commissioner of Police v. Acharya Jagdishwarananda Avadhuta
Common Cause v. Union of India
communal: egalitarianism; electorates; housing segregation; quotas; relations; representation; stress
Communist Party of India (Maoist)
community: as a culture-bearing entity; of property; ostracism
compelled testimony
conjugal rights
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA)
conservatism
Constituent Assembly; Fundamental Rights Sub-Committee;—Draft Report of April 1947; Sub-Committee on Minorities
Constitution of India; Articles. See Articles; conservatism; the courts and; and the culture of justification; Drafting Committee; Fifth and Sixth Schedule; Forty-Fourth Amendment
constitutional: commitments;
continuity; courts; jurisprudence; liberalism; problems; prohibition; protection; provisions; secularism
Constitutional Public Policy
contexts of choice
contextual interpretation
contraceptive devices: and marital privacy; right to unmarried couples
Contract Labour Act
contractual solutions
contrapuntal canon
cow slaughter, ban
Crime and Criminal Tracking Network and Systems (CCTNS)
Crime Control Model
criminal investigations
criminal justice system (CJS);
in colonial India
Criminal Law Amendment Act
Criminal Procedure Code (CrPC)
criminal process: two models;— Crime Control Model; Due Process Model
Criminal Tribes Act
culture of authority
Curators v. University of Kwa-Zulu Natal
Dadaji Bhikaji V. Rukhmabai
Dalits, exclusion from social and religious life of community
Das, C.R.
Das Gupta, Justice
Dawoodi Bohras. See also Central Board of the Dawoodi Bohra Committee v. State of Maharashtra
debt slavery
decisional privacy
Delhi Development Authority (DDA)
Delhi High Court
Delhi Transport Corporation v. DTC Mazdoor Congress
democratic politics, framework
denial of remedies
Depressed Classes
Devadasan, T.
devadasis
Dhavala Rama Dhengale v. State of Maharashtra
Dhengale, Dhavala Rama
dignity, right to; denial of; of the individual; in the transformative Constitution; of women in domestic sphere
Directive Principles of State Policy (DPSPs)
discrimination based on race, religion, caste, sex and place of birth
disparate impact
distributive justice
Divan, Shyam
DNA Bill
DNA databanks
DNA profiling
domestic space; force and freedom in. See also women
domestic violence, state interference
Domestic Violence Act
domestic virtues
domination and authoritarianism; force and freedom in domestic space; freedom, non-domination, and arbitrary power; subordination within the private sphere
Dorairajan, Champakam
Dropti Devi v. Union of India
drug peddling
Durgah C
ommittee, Ajmer v. Syed Hussain Ali
East India Company
Economic and Social Council’s ‘Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery’
economic: circumstances, compulsions;
discrimination against women, scheduled castes, untouchables, and other groups; exclusion; freedom; structure and the transformative Constitution; transactions in the private sphere, discriminatory; unfreedom
Eisenstadt v. Baird
Emergency Powers in India
Emergency Powers Ordinance
Emergency, regime of; culture of authority; denial of remedies; executive supremacy under
employers and employees, unequal relations of power
Enlightenment and Victorian morality
Equal Opportunities Commission (EOC)
Equal Remuneration Act
equality; autonomy, and self-determination, political norms; before law, right to; of citizenship; constitutional vision of; and decisional privacy; fundamental right to; and non-discrimination; of status and opportunity
Equality Code of the Constitution
equitable representation
essential religious practices (ERP); tracing the genealogy of a phrase
European Court of Human Rights
European Union General Data Protection Regulation (GDPR)
Evidence Act; exclusionary rule
evidence, illegal and unconstitutional
exclusion and subordination, structural patterns
Excommunication Act
excommunication, practices of
executive supremacy
FaceTagr
facial recognition technology
family, marriage, motherhood, procreation, and child rearing; depoliticization of family issues. See also conjugal rights; gender; women
Federal Bureau of Investigation (FBI)
Ferreira, Arun
financial compensation for housework
fingerprint samples
force and freedom in the domestic space
forced labour
Foreign Exchange Management Act
foreign exchange violations
formal consent
Franchise Committee
fraternity
freedom; and constitutional liberty; and economic freedom, link, 196; and economic structure; institutions, and structures; non-domination and arbitrary power; non-interference; of conscience; of contract; of movement; of religion; to work, Peoples Union for Democratic Rights and forced labour
The Transformative Constitution Page 55