Right to privacy: Why India remains the future of democracy
The dark clouds have lifted. Over the last few months, the Indian citizen has been made to feel smaller by the day. We felt we were hapless little snails crawling on the floor, the minuscule shell on our back the only protection against big government and big business.
With the Supreme Court making the right to privacy a fundamental right, the citizen finally feels empowered. We are not cowering anymore, but standing upright. There’s a spring in our step. And a sense of pride—it’s because of judgements like these that India continues to remain the future of democracy. A momentous emphatic judgment like this also shows the moral depth that India is capable of, compared to the shallowness of China’s development motto: more wealth, zero freedom/ fatten the pigs in a cage until they die in the cage.
In recent times, we have been subject to a top-down form of governance, where in Chinese fashion, we are supposed to fall in step with whatever ideology the government is propagating, and start marching in tandem. Those who don’t will be penalised, ostracized, banned, blacklisted and berated. What the anti-majoritarian SC judgement does is put the citizen back at the heart of democracy, again.
It was John Locke who emphasized that natural rights are inherent in every individual—we possess them simply by being human. Locke’s natural rights are not the result of political, legal and social convention, but held in virtue of our common nature. These rights are inalienable and hence pre-political: ‘Men being by nature all free, equal and independent, no one can be put out of this estate and subjected to the political power of another without his own consent. (Second Treatise)’.
In its judgement on privacy, the Supreme Court similarly ruled that liberty includes natural rights that are inalienable. These rights are not a gift of the state but inhere in all members of the human race, and hence every Indian. This went against the government’s position (that reeks of intellectual poverty) that privacy matters only to the elite. Now, privacy is the fundamental right of every single Indian, rich or poor.
Reclaiming one's choices
The idea of freedom has two dimensions: the freedom from certain obstacles, and the freedom to plan, follow and achieve one’s life goals and happiness. The right to privacy gives us the former; it guarantees one freedom from external interference.
What has been happening until now is an unprecedented interference in what one can eat, drink, one’s sexual choices, the religion one chooses to follow. The individual was being slowly erased of all human traits. The individual had become a saffron bot.
Now, the right to food is part of one’s right to privacy. We were at the stage where mobs and the police (equipped with beef detection kits) were barging into homes and inspecting people’s fridges. The judgement will have a bearing on this gross intrusion.
The same goes for prohibition. If alcoholism is a problem in certain sections of society, it doesn’t mean that everyone has to stop drinking. One’s choice of food and drink is an individual choice, now protected by law. No one has a right to impose his habits on another. The third-world political practice of issuing blanket ban after ban, trammelling on individual liberties, and catering to vote banks, will be tempered. I finally have a right to say: ‘But what about me?’
The judgement will also most certainly have a bearing on Section 377 that criminalises homosexuality. Justice Chandrachud said that sexual identity is inherent in the right to life. This had to come from the courts. If we had waited for societal and legislative acceptance of homosexuality, it would never have happened. Sometimes, the courts have to step in and stand up for the minority. What happens in the consenting privacy of a bedroom, between two individuals, is only the business of those two people.
Choosing and practising a religion is a private matter. Anti-conversion laws can be challenged now. I will follow or not follow, convert, reconvert—it’s none of your business.
Setting a global example
In two significant ways, the privacy judgement also sets the tone for western democracies. With the increase in anti-Islamist sentiment in the west there has been a clamour for banning the burkha/ burkini/ external religious symbols. Even those working for private companies have been subject to discrimination over dress.
As Justice Chelameswar said, the choice of dress and appearance is not only part of freedom of religion, but also an integral part of privacy. No one can stop you from wearing a beard or a hijab.
The second way in which the judgement pushes the envelope is with regard to euthanasia, a matter far from settled in the Christian west. Justice Chelameswar wrote an individual’s ‘rights to refuse life prolonging treatment or terminate his life is another freedom which falls within the zone of privacy.’
As for the Aadhaar card, my grandmother who suffers from dementia and can barely walk, is yet to get one. She is in no position to queue up and get her biometrics done. In her current status with the state, if she breathes her last, getting her death certificate will not be a straightforward matter. This is a surveillance state that disowns its own.
India is one the world’s oldest civilizations. Over the last seventy years it has built on this foundation using the tools of democracy. In recent years, we too have been forced into the majoritarian, nationalist and dictatorial currents sweeping parts of the globe.
This landmark judgement pulls us back from the brink of the abyss and puts us at the forefront of a liberal world order, where an individual’s personal choices are sacrosanct. As an Indian you can now walk with your head held high, without constantly having to look over your shoulder.
(The writer is the editor of House Spirit: Drinking in India, published by Speaking Tiger)