Landmark Judgement Thwarts Move to Violate Fundamental Right to Privacy
It is ordinary citizens from all over the country whose determined challenge to the Central Government’s efforts to violate privacy and demand revelation of data under Aadhaar that led to the landmark Supreme Court judgement upholding right to privacy as a fundamental right.
The Government of India as well as various BJP ruled states argued in Court that citizens do not enjoy a right to privacy; that the poor do not need privacy; that citizens do not have a right over their own bodies; that the Constitution made no mention of privacy.
The Supreme Court verdict demolished these arguments and upheld the right to privacy as a fundamental right. It affirmed that the right to privacy is not “granted” by the Constitution; rather every person is born with this right which the Constitution recognizes and affirms.
In response to the Central government’s argument that privacy is an “elitist construct”, the verdict responded: “Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects. The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights.”
The verdict made it very clear that the right to privacy is the citizen’s protection against the State’s authoritarianism: “Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being. The right to privacy is certainly one of the core freedoms which is to be defended.”
After the verdict, the usually talkative BJP leadership went silent; and then, even as Modi remained silent on it, BJP leaders like Ravishankar Prasad began to claim – contrary to govt.’s own written submissions and arguments in the court- that they had always stood for right to privacy! At the same time, former Attorney General Mukul Rohatgi who argued against right to privacy in Court, have gone to the extent of suggesting that the verdict can also be seen as a case of “judicial overreach”!
The BJP Government, in response to citizens who opposed Aadhaar, said that data mining under Aadhaar was valid since the right to privacy was not a fundamental right. Now that the right to privacy has been upheld as a fundamental right, BJP leaders are all trying to claim that since fundamental rights are subject to reasonable restrictions, right to privacy too is “not absolute” and is subject to restrictions!
This remarkable and historic verdict has many aspects that give fresh meaning and relevance to the Constitution. One of its most significant aspects is that it reviewed and corrected the Supreme Court’s own flawed judgments – upholding the Emergency and upholding Section 377 that criminalises LGBT persons.
The verdict affirms, “Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.”
The verdict also affirms, “I do not think that anybody would like to be told by the State as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life.”
This has a direct bearing on the Constitutionality of laws under which BJP Governments have been justifying the raiding of private homes to search for beef; and attempts to ban the consumption of beef or slaughter of animals. Earlier, the Bombay High Court gave a verdict striking down sections 5(d) and 9(b) of the Maharashtra Animals Preservation (Amendment) Act, 1995, which criminalised and imposed punishment on persons found in possession of beef of animals, slaughtered in or outside the state, on the ground that it infringed upon a person’s “right to privacy”. The Maharashtra Government has challenged this in the Supreme Court arguing that right to privacy is not a fundamental right. Now after the latest SC verdict, this claim stands demolished.
In upholding the right to privacy, the verdict also safeguards the right to dissent and diversity: an immensely significant thing at a time when the BJP Government is seeking to brand every opinion, every practice, every taste that is not in tune with the “majority” view to be anti-national and criminal. The verdict makes it very clear that the Constitution safeguards the right of citizens to hold their own views and opinion and sexual, cultural, and dietary practices even if the majority does not approve of them. The verdict is a reminder that democracy is not about the rule of the majoritarian mob but about the securing of the rights of minorities and dissenters.
The implications of the verdict for Aadhaar are huge. No longer can the Government sustain its right to indiscriminately and mandatorily demand the revelation of data as a precondition to access their wages, their rations, their pensions. Just as the Emergency sought to take away the right to privacy and place citizens’ lives under state surveillance, so does Aadhaar – and the SC verdict has now put a spanner in those works. The Government can no longer justify giving citizens’ private data into the control of foreign and corporate companies. It can no longer justify extracting and using citizens’ private data for the purpose of surveillance and snooping.
Aadhaar is not – as the Government claims – simply a benign use of techonology to facilitate welfare measures. Surveillance technology is intimately linked with fascist and totalitarian projects. Can we forget that during Hitler’s rule, the IBM corporation created machines that served to identify and track Jewish populations across Europe, so that they could be ghettoized, and later transported to concentration camps?
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