India Stands At A Legal Crossroads
As recounted with Sajjan Poovaya, Senior Advocate
Last week was a historic one for the Indian judiciary. The Supreme Court has unequivocally supported an Individual’s Right To Privacy at the expense of the Government and it’s the time to ponder the manifestations of that decision.
It isn’t a regular day when the Supreme Court of India unequivocally endorses the Individual Right to Privacy. A 9-0 verdict by the Supreme Court is not a regular occurrence and it emphasises how completely the judiciary of our country has regarded the implicit importance of an Individual’s right to Privacy. In a constitutional democracy, there lies an unsubtle struggle between the citizen and the state. It is a limited government always grasping for more control while the balance and checks held by the citizens, such as an independent judiciary seek to curtail that control. An Authoritarian government has no restrictions and the Indian constitution firmly prevents the coming into force of one such in our country.
In this context of limited government, the judgement on our unequivocal Right to Privacy, as declared by the Supreme Court, must be examined. Privacy, in all it’s manifestations, be it in a person’s personal self, or in their decisional autonomy (Power to make decisions) or the information regarding the person, is a fundamental right and rests with the citizens of this country. Reciprocally, it imposes as many limitations on the government’s desire to tamper with a person’s right to privacy. It’s a significant step towards the continuation of this ‘perfect democracy’ that the Indian Constitution established on 26th January, 1950.
An invaluable bundle of rights have been granted to the citizens of this country by this judgement, the vast majority of which are yet to be explored. Governmental rights (and functions) which were taken for granted will not be called into question on the basis that it impugns an individual’s right to privacy.
Privacy is a Natural, inalienable Right which, while exist in the enjoyment of the other fundamental rights within Part 3 of the constitution. Privacy, pertaining to one’s body and mind, the decision to share information and decisional autonomy are all inseparable from the citizens in our country. Reciprocally, the rights of the Government and it’s bodies (such as the Police etc) have been rendered blunt. The upheld Decisional autonomy, i.e. our choice to speak to who we wish, interact with who we wish, sleep with who we wish, is pivotal not only to the regular citizens of our country, but also vital to criminalised minorities, such as sexual minorities and sex workers.
Physical relations between consenting adults, regardless of their sex, is a private matter. The government’s ability to interfere, judge, declare criminal in any scope within this context is now baseless. The government’s criminalisation of the Indian homosexual community via Sec 377 is now only awaiting to be repealed on the basis of this SC judgement. The petitioners of the Naz foundation rightly rejoiced upon the Supreme Court verdict’s on Friday with the chief petitioner Anjali Gopalan declaring jubilantly that she is ‘over the moon’.
With Sex workers, the decision on the part of the sex worker to sell their body for monetary purposes is now firmly out of the ambit of the state’s ability to penalise. It is a consensual decision taken by the individual which is the essence of their decisional autonomy that the Supreme Court has upheld.
Similarly, our choice of music, dress and most pertinently, food has been upheld. The advent of the Modi government has seen various Gau-rakshas descend upon us, along with the murder of innocents such as Mohammed Akhlaq Saifi. India became as regressive as several Islamic countries, where the government and clergy requires that the entire population not offend the tenets of the ruling religion i.e. Islam, this is a welcome verdict. For a country to be based on the idea that ‘offending’ each other’s sentiments is unwelcome, it is merely a childish vanity that we stamp our feet and demand that everyone have the same feelings and perspectives as we do. There is only one perspective with respect to behaviour, God, society and government and for others to offend such sentiments carries criminal and legal ramifications. The triumph of individualism in democracy allows people to have differing perspectives, as long as they don’t actively harm other people or their enjoyment of the same rights. Perhaps an individual eating beef or pork offends a devout person sitting at an adjoining table. However, it is not a crime, as long as they aren’t forced to do the same. To live in a society where our feelings can be offended, must be offended, is the only kind of society worth living in.
This judgement diminishes the efficacy of the Government’s Aadhar programme, as well. While the government can collect their citizen’s data through it’s public domains, it’s ability to use that data, either to conduct surveillance, or to profile it’s citizens, is now severely diminished. Interlinking their public domains to keep a tab on it’s citizens is a violation of an Individual’s fundamental Right to Privacy according to the SC ruling. While the Aadhar programme is not violating our fundamental Right, but only if the individual information provided is used as it is and not for any other purpose. The structure and purposes of the Aadhar programme would be further challenged in light of this judgement in the months to come.
Together, we stand at the brink. On one side lies an abyss of authoritarianism, a dark and dismal future where the government keeps an eye on it’s citizens, asking for obedience through a subtle form of observation. From Observation to Control is but a short step, and that of power to it’s abuse even shorter. When the idea is conformity and regulation, standardisation and acquiescence, an individual’s right to eat what they’d like, dress how they wish and sexually interact with who they desire is judged and controlled.
On the other lies a plethora of Natural Rights, the ones that every human being, regardless of their birth, caste, religion or community is entitled to, (provided they don’t flout the law or infringe on the rights of others). The Right To Privacy and one’s ability to possess decisional autonomy is crucial to an individuals life which cannot be taken away, except under reasonable circumstances. Whatever be these reasonable circumstances, it is clear that the years ahead are big ones for the Indian judiciary as they ponder the extent to which one’s privacy entails and what situations preclude their enjoyment.