Right to privacy: Will India be the country of its Constitution or a society of its subjects?

Child rights activist Shanta Sinha, a Ramon Magsaysay award winner, has spent much of her life fighting the good fight. When she realised that many of the poorest Indians could not access social welfare benefits such as mid-day meals without Aadhaar, a 12-digit unique identification number, she challenged its constitutionality. In Shanta Sinha v Union of India, filed in 2017, Sinha argued that making it mandatory violates the right to life and privacy.

Aadhaar means “foundation” or “basis” in Hindi, and that best reflects the problems with the government’s position – lack of Aadhaar will take away an Indian’s foundation or basis of citizenship.

Aadhaar uses your biometric information, iris scans and demographic details. If your Aadhaar information is stolen or leaked (a common occurrence), you have no remedy other than simply simmer or tweet your dismay. That is because India does not have privacy or data protection laws.

When the case came up for hearing in the court, the petitioner’s lawyer compared the compulsory nature of Aadhaar to turning the country into a concentration camp. In response, the attorney general, representing the government, argued that there was no right to privacy in India.

The Supreme Court has a complicated relationship with privacy. The pre-Emergency court, sitting in benches of five and seven judges, found that Indians did not have a right to privacy. In its post-Emergency incarnation, a succession of smaller benches of the court recognised such a right, thereby, evolving the law on a somewhat whimsical “case by case” basis.

To sort out the resultant jurisprudential chaos, the overburdened court this month decided to upend its schedule and spare nine of its 29 judges to hear a single question: does India have the right to privacy?

The case being heard now is not really about the unique identity number, though. It is about the conception of Indian citizenship – the Aadhaar, or foundation, of what it means to be Indian. Why do I say this? What is so special about this case that implicates Article 21, which provides that “no person shall be deprived of his life or personal liberty except by procedure established by law” and from which flows the right to privacy?

Inconsistent position

Classically, the right to life is used to protect civil and political rights, the right to fair trial, or simply the right to stay alive. However, India’s apex court has utilised it differently. The court, which is known to be a constitutional trailblazer in the sphere of socio-economic rights, has used the right to life and liberty to render justiciable traditional socio-economic rights –to food, water, education, health and even good governance.

Yet, the same court has been reticent when confronted with cases that implicate human autonomy – in the context of speech, expression, sexuality, assembly and association. This is not necessarily contradictory. For when traditional civil and political rights are infused with the jurisprudence of group-based and popular socio-economic rights, it changes the character of the right and moves it away from its more classical notion. It adds a certain flexible character to civil and political rights, whose core is located in the inalienable rights of the individual citizen. However, the court has not consistently enough reaffirmed the more classical core of the right – that the right to life includes the right to personal liberty – and located that right in constitutional principle.

Activists have conflated the battle for privacy with the battle against Aadhaar. They are deeply concerned that the current Bharatiya Janata Party-led government – obsessed with vegetarianism and criminalisation of beef, and disinterested in prosecuting those who have lynched Muslim citizens – would misuse Aadhaar. The government’s stand in the court that there is no constitutional right to privacy mirrors its politics outside, where they have policed food preferences, relationships, gender roles and religious beliefs. Essentially, this government has shown disregard for the autonomy or integrity of the individual citizen.

Big picture

Constitutionally, this case is about more than Aadhaar. The jurisprudence crafted by the court sees all rights emanating from an amalgamation of Articles 14, 19 and 21 of the constitution – which guarantee, respectively, equality; freedom of speech, expression, assembly and association; right to life and liberty – especially as it pertains to the individual citizen against state action. Lack of privacy would implicate citizens both in their professional and personal lives, given the interconnected nature of these rights and the jurisprudence they rely on.

As technological advances expand the state’s capacity for surveillance, through legal and illegal means, the ability to dissent or critique the state withers away in the absence of the right to privacy. Already, India is witnessing the melting away of a sense of autonomy – and an identity of the country is emerging that is not shaped by citizens but by the government and its unelected ideologues. In this context, the “case by case” method of settling questions of rights that has been preferred by the court so far becomes problematic. What is needed is a constitutional principal that would establish a conception of “citizen” (even a non-citizen when necessary) as the inherent bearer of rights, swathed with dignity, bodily integrity and the ability to make choices.

Both the Hindu caste system and British colonialism were premised on the belief that their subjects – “lower castes” and “natives”, respectively – did not have the ability to make choices affirming bodily integrity and dignity. The constitution upended these exploitative premises and reimagined Indian citizens as being choice bearers with rights to equality, dignity, expression, life and liberty.

The government has thus erred by arguing that privacy does not exist constitutionally. At the same time, it is inappropriate to conflate the fight against Aadhaar with the battle for privacy.

Admittedly, the lack of appropriate data protection and private information laws as well as the possibility of the Human DNA Profiling Bill, which is based on faulty science, becoming law makes the constitutional quest for privacy dire. But there is something much larger at stake in the ongoing legal battle – India will either be its Constitution’s country, or it will be a society of subjects.

Menaka Guruswamy practices law in the Supreme Court of India, and is a fellow at the Wissenschaftskolleg zu Berlin for 2016-’17.