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Post 9/11: Should Civil Liberties Be Compromised To Fight Terrorism?

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By Arun Arya:

The 21st century began with a major terrorist attack on the World Trade Center and Pentagon on September 11, 2001. It  created a precarious situation around the world. It led to seismic changes  as new anti-terror laws were formulated.  New techniques for intercepting information and massive infrastructure of surveillance in the form of keeping tabs on electronic traces of its population to counter terrorism took place.

Formulation of such laws  occurred within a decade. David Jenkins has referred to it as the ‘long decade‘, where legal systems evolved in reaction to global terrorism. Several legal scholars have tried to understand the nature of the surveillance state  and the consequences of counter terrorism measures upon the rights and liberties enshrined in the constitution. Intense debates took place amongst legal scholars around the conundrum between ‘security and freedom.’

Jeremy Waldron warns about giving up our civil liberties and striking a new balance between liberty and security as he writes, “We must be sure that the diminution of the liberty will, in fact, have the desired consequence- or if the desired reduction in risk is only probable, not certain, then we must be as clear as we can about the probability.” Reducing liberty consequently increases the power of the state, which may be used to cause harm or diminish liberty in other ways. Such power in the hands of the state is seldom  used only for emergency purposes and is always liable to abuse. Instead of trading off liberties for purely symbolic purposes, there should be assessments about the effectiveness of such trade-offs.

Waldron  revealed the ‘image of balance between liberty and security,’ and the concerns about consequentialism. It received stark criticism from Adrian Vermeule and Eric Posner and it was said to be merely reflecting the institutional and causal hypothesis between political psychology and its effects on policymaking. Both scholars advocate a trade-off thesis between security and liberty. They draw examples from the 9/11 Commission report which claimed that more aggressive screening and profiling at immigration points could have prevented the attacks.

Therefore, they argue that both security and liberty are valuable goods that contribute to individual well-being and welfare, and neither good can simply be maximised without the other. Restriction of liberty is a prerequisite to increasing security,  One of the characteristics of emergencies or terrorist attacks are the defensive measures where the government opts to increase intelligence gathering and monitoring. Also, on such occasions, the executive, which is swift and vigorous gets  institutional advantages along with  secrecy and decisiveness. In contrast, the judges are at sea and the evolved legal rules are seens as obstructive and possessing limited information and limited expertise.

The post-9/11 hysteria also struck Richard Posner. He contends that rights should be modified according to circumstances and that we must find a pragmatic balance between personal liberty and community safety. He argues that “If we do not allow the Constitution to bend, it may break.” He finds the direct connection between liberty and security as there is an automatic direct balance between them- a ‘fluid hydraulic balance.’ It shifts continually as threats to liberty and safety wax and wane. He contemptuously disdains civil libertarians and sees the fundamental rights of liberty and privacy as ‘mischievously’ blocking appropriate national security measures.

According to him, “Privacy is the terrorist’s best friend” and the government must exploit digitisation in defence of national security. The dangers of data mining such as leaks should be prevented through sanctions and other security measures to minimise the leakage of such information outside the community involved in providing national security.

The trade-off thesis sees the balance between security and liberty as a zero-sum trade-off. However, Daniel Solove finds this argument  completely flawed and argues that the balance between privacy and security is rarely assessed properly. Instead, he argues that the real balance should be between “security measure with oversight” and “regulation and security measure at the sole discretion of executive officials”.

In the  United States of America and the West in general, the role and responsibility of judiciary in times of counter-terrorism and surveillance is considered to be crucial despite criticisms from a few quarters. It is held as the guardian of constitution and human rights. Martin Scheinin argues that it is the judiciary whose inherent constitutional responsibility is to protect procedural fairness against government limitations by strengthening judicial review. In order to play a greater role it needs to counter ‘pull of deferentialism,’ which erodes the particular responsibility of judges. In this scenario one of the fundamental problems, that judiciary around the world and particularly in India  is confronting  is how to strike a balance security and freedom.

In India, the concept of freedom does not merely revolve around providing security from potential terrorist attacks, which were actually addressed by several legislative reforms and by the introduction of technologies of surveillance. Rather, it also involves freedom to access welfare schemes and entitlements, freedom from misgovernance and corruption. With this idea, the grand biometric identification project was initiated. However, such an idea diluted the notion of privacy, because there is a general agreement that there is ‘nothing to hide’ and that it is a ‘false trade-off’ of privacy in the name of welfare. In this context, it is not merely revolving around balancing thesis or trade-off thesis on ‘national security vs. individual privacy,’ but it is also about ‘entitlements’ and ‘citizenship’ as being identified as members of the state.

In the aftermath of 15 years of September 11, 2001, there is major dissonance revolving around security and liberty in this era of global terrorism. The response from democratic regimes is quite alarming and raises several questions on nature of surveillance and democracy in this twenty-first century. The question revolves around the conundrum to fight against terrorism under the liberal constitutional framework or by trading-off civil liberties which are protected under  liberal democracy.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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