Right To Privacy — A Verdict For The Times

In this two-part feature, Liberation takes a look at the highlights and takeaways of the recent verdict by a nine-judge Bench of the Supreme Court that upheld the Right to Privacy as a fundamental right. Liberation seeks to equip workers, women, students, artists, and other sections of struggling people with a grasp of how this verdict vindicates and empowers them and their struggles.

The concluding part of the feature will appear in the forthcoming (November) issue of Liberation.

Modi Government: Impaling Itself On Its Own Sword

Citizens had petitioned the Supreme Court challenging the constitutional validity of Section 139AA of the Income Tax Act which provided for mandatory mention of Aadhaar while filing income tax returns and applying for PAN number. In 2015, when the hearing of those petitions was in its final stages, the then Attorney General Mukul Rohatgi, representing the Modi Government, suddenly threw a curve ball. He cleverly produced an 8-judge bench verdict of the SC to show that privacy was not a fundamental right protected by the Constitution. If privacy was not a fundamental right at all, how could Aadhaar be said to violate privacy, he asked. He demanded that the Supreme Court refer the ‘dispute’ over the constitutional protection for the right to privacy to a nine-judge bench.

The Modi Government thought of this as their master stroke: they could delay the Aadhaar verdict for some years and meanwhile they could go ahead with making Aadhaar a fait accompli. The Government thought it had blindsided the citizen petitioners who were questioning Aadhaar – and indeed, it had done so.

Also, perhaps the Government felt it had no option but to challenge right to privacy as a fundamental right – because it knew that the Aadhaar scheme was violating citizens’ privacy in a very blatant way. And perhaps the Modi Government wanted to score an ideological point by drastically restricting the scope of and weakening the right to privacy. After all, this is a Government that, together with the Sangh forces that form its core, is deeply committed to attacking citizens’ right to privacy and autonomy in so many ways: by prescribing or imposing restrictions on diet, dress, thought, speech, and faith. Perhaps it was confident that it could secure moral validation from a nine-judge Bench of the Supreme Court for its own contempt for citizens’ right to privacy.

The Modi Government, while denying the right to privacy in the Aadhaar case, was – in another courtroom in the same Court – citing the fundamental right to privacy to defend the criminal defamation law that is being used to silence and punish dissenters! The Government’s presumption that it could – in the Supreme Court – claim or deny the right to privacy based on its own sheer convenience and opportunism, reflected its own contempt for the Supreme Court and its utter arrogance.

Two years later, it is clear that the Modi Government’s move backfired spectacularly. The nine-judge Bench emphatically slapped down the Government’s attempt to deny the fundamental right to privacy of citizens and non-citizens. The verdict vastly strengthened and expanded the right to privacy – raising it to be on par with the right to life. Not only will the constitutionality of Aadhaar now have to meet these high standards – the verdict, couched in sound, balanced legal reasoning, politely holds up a Constitutional challenge to the fascist outlook and ideology of the Modi Government, as well as to the ‘mai-baap sarkar’ (a Hindi phrase denoting an authoritarian and paternalistic Government) attitude of the Indian State in general.

This is why, for hours after the verdict, there was radio silence from the voluble Prime Minister and his team, as well as his Troll Army that had, just days before that, sought to credit Modi for the Supreme Court’s Triple Talaq verdict!

Then, slowly, the Government began to try and save face and pretend the verdict was no big deal. Red-faced, Union Minister Ravi Shankar Prasad tried to say that the Government had always maintained that the right to privacy was a fundamental right! But Rohatgi – now no longer Attorney General – spilled the beans and belied the Government’s attempt to claim that it was actually on the same page as the Supreme Court on the right to privacy. Rohatgi has, since the verdict, said over and over again that the judgement was an instance of “judicial overreach” and that the court could not “create fundamental rights”, rather only Parliament could do so. These arguments had already been thoroughly decimated by the Right to Privacy verdict – but that didn’t stop Rohatgi from repeating them.

Government Lies On Aadhaar

The Government claims that Aadhaar has been effective in plugging leaks in welfare schemes and preventing fraud. But its claims have not stood up to scrutiny.

PM Modi, in Parliament, claimed that thanks to “Aadhaar and technology”, nearly 4 crore bogus ration cards had been exposed. Later, a “corrected” statement was issued putting figure of bogus ration card holders at 2.33 crores. But an RTI filed by activist Anjali Bharadwaj, failed to elicit any data supporting Modi’s claim.

As activist Reetika Khera writes, “Job cards and ration cards cancelled in the course of routine updation (or “cleansing”) drives are attributed to Aadhaar. In fact, in many cases, the cancellation pre-dates integration with Aadhaar. For instance, the 20 lakh cards deleted in 2014-15 in West Bengal are credited to Aadhaar-integration though only 15,000 cards were Aadhaar-seeded on March 2015.” (‘The real beneficiary’, Indian Express, June 2, 2017)
Is Aadhaar needed to prevent fraud in welfare schemes? Reetika Khera answers: “Aadhaar cannot reduce quantity fraud. When a PDS dealer undersells, whether I am forced to put my thumbprint in a paper register or a POS machine makes no difference to quantity fraud.

Aadhaar cannot enhance inclusion. Possession of Aadhaar alone cannot guarantee benefits (say, pensions or scholarships), one still has to meet the eligibility criteria of those programmes. Exclusion from welfare was rarely due to the lack of ID documents (in a response to an RTI query, 99.97 per cent of those who enrolled in Aadhaar did it on the basis of existing ID documents). What Aadhaar can fix is identity fraud — for example, if I illegally get two ration cards or duplicates. But then, Aadhaar is one among several ways of de-duplication, and not the most efficient either — smart cards, or even painting the full list of beneficiaries on panchayat walls works well to identify ghosts and duplicates!”

While there is no evidence that Aadhaar helps prevent fraud in welfare schemes, there is ample evidence that mandatory Aadhaar is excluding rural children from mid-day meal entitlements, rural workers from MNREGA jobs, TB patients from accessing cash benefits, students with disabilities from accessing scholarships. Aadhaar simply failed to work: even in Court, during the hearing of the PAN-Aadhaar linking case, UIDAI CEO Ajay Pandey tried – and failed – to demonstrate how fingerprint identification worked! He had to do an iris scan instead.

Way back in 2009, former IB chief (now National Security Advisor) Ajit Doval had candidly admitted that the “development” and “welfare” claims for Aadhaar were simply a red herring to help win people’s consent for loss of privacy: he said, “…it is being projected as more development oriented, lest it ruffle any feathers. People would be unwilling to give up their right to privacy.” (‘Falling Between the Barcodes,’ Tusha Mittal, Tehelka, August 22, 2009)

Meanwhile, evidence continues to pile up about the shocking lack of privacy of data collected under Aadhaar – serving as a warning to us about how the State and private companies can use Aadhaar data to rob citizens of rights.

Private phone companies like Jio continue to demand Aadhaar data. As Usha Ramanathan wrote: “a company called TrustID offering ‘India’s 1st Aadhaar based mobile app to verify your maid, driver, electrician, tutor, tenant and everyone else instantly.’ The app boasts it can do this in “less than a minute”. Its punchline: ‘Shakal pe mat jaao, TrustID pe jaao.’ Don’t go by the face, use TrustID. Think about what this means. A private company is advertising that it can use Aadhaar to collate information about citizens at a price. It says this openly, even as a case about the privacy of the information collected for the biometrics-linked government database is still pending in the Supreme Court.” (‘The future is here: A private company claims it can use Aadhaar to profile people,’ Scroll.in, March 16 2016)
If private companies are given access to Aadhaar data, it means that they will be able to track and profile citizens to know (in the words of the SC’s Right to Privacy judgement) “food habits, language, health, hobbies, sexual preferences, friendships, ways of dress and political affiliation” and use this information for commercial purposes. Moreover, this information will then travel back to the Government – which can then potentially use this information to discriminate against individual citizens or groups of citizens.

It is well-documented how the Nazis used surveillance technology to spy on and eliminate Jews as well as Communists and dissenters. In 1971, eight US citizens who were protesting the Vietnam war, burglarised the FBI office and secretly released documents to the media, to expose how the FBI was illegally spying on anti-war activists, Black and anti-racist student groups. Edward Snowden has revealed how US Governments today are spying on citizens and thus endangering liberty. This is why it would be huge error to see Aadhaar as a neutral technological tool to improve welfare and security measures, and why the citizen petitioners against Aadhaar are so right to demand that any data-gathering on part of the Government be subject to a legal regime to protect privacy.

Privacy As Aspect of Liberty, Dignity, Democracy

The verdict seeks to define privacy: “Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable.” It defines privacy as “a core of freedom and liberty from which the human being had to be free from intrusion.” It counts privacy among fundamental rights that cannot be “amended out of existence” by Parliament.

The verdict notes that to recognise privacy as a fundamental right is not to “create a new right” as claimed by the Government. Instead it unpacks how privacy is inseparable from the right to life and liberty: “The right to privacy is an element of human dignity. The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion. Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life. In doing so privacy recognises that living a life of dignity is essential for a human being to fulfil the liberties and freedoms which are the cornerstone of the Constitution.”

In his concurrent judgement Justice Chalameshwar put it this way: “Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being” – making it clear that privacy is in fact one of those core freedoms which need to be protected from State interference.

Correcting Past Mistakes

In a section titled ‘Discordant Notes’, the verdict takes the opportunity to correct the deeply embarrassing ADM Jabalpur verdict that had justified suspension of the Right to Life and Personal Liberty during the Emergency. It notes that “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence…. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution.”

In other words, it affirms that human rights including to life, liberty, privacy are not ‘created’ or ‘given’ by the Constitution and cannot therefore be ‘taken away’.

The verdict also takes the opportunity to comment on another ‘discordant note’ – the infamous Koushal judgement upholding the Section 377 law criminalising LGBT people (see ‘Section 377: A Vicious Circle of Discrimination and Violence’, Liberation January 2014).

A Blow To Majoritarian Logic

The Right to Privacy verdict vindicates those who have filed a review petition against the Koushal judgement, by noting that the Koushal verdict was wrong to deny the right to privacy to LGBT people on the basis that “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders.” It affirms that “Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.”

In so doing, it does not just strike away the basis of the infamous Section 377 and protect the rights of LGBT people in India. It also emphasises that majoritarian morality (where the majority opinion/community claims the right to curtail the rights of the minority) cannot have a place in a democracy. This rather pointed observation Supreme Court Bench becomes significant and timely at a moment when, on India’s last Independence Day, a leader of India’s ruling party wrote an op-ed piece in which he implied that “the mob” – the majority of Indians – are at ease with the Modi Government and the BJP/RSS politics, and it is only liberals who are not rooted in Indian values, who are uneasy with mob lynchings of people on the pretext of ‘cow protection’ or the forcible abduction of Hindu women to separate them from Muslim lovers/husbands.

The privacy verdict emphasises that the fundamental rights of any section of people holding a minority opinion – women demanding autonomy; members of minority faiths; atheists or rationalists; homosexuals; live-in couples; people who eat beef or meat; students who support the cause of Kashmiri self-determination etc – cannot be curtailed either by laws or by mobs on the pretext that the majority is happy with such curtailment. Instead, it emphasises that democracies must safeguard the exercise of the fundamental rights of such minorities:

The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties.

In fact, in explaining the concept of the right to privacy, the verdict highlights the section from the Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat that states: “What one eats is one’s personal affair and it is a part of his right to privacy which is included in Article 21 of our Constitution as held by several decisions of this Court.” This is a pointed reminder at a time when laws passed by BJP-dominated Assemblies banning slaughter of animals are being challenged in the Supreme Court, and when Muslims and Dalits are regularly being lynched by BJP-supported mobs on the pretext that they have eaten beef.

The verdict affirms how important privacy is to protect plurality and diversity: “Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.” It also points out that “Democracy accepts differences of perception, acknowledges divergences in ways of life, and respects dissent….The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions.”

Again, this is a polite but pointed reminder by the Court to the Modi Government that the Constitution does not permit it to curtail either privacy or plurality and diversity (of faith, diet, language, culture, opinions, decisions) of any section of people, even if such dissent or diversity represents a minority. 

(To be concluded)

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