Supreme Court’s judgment on Privacy.

A nine judge bench of the Supreme Court of India yesterday unanimously held that privacy is a Fundamental Right. Simply put, this means that it has become extremely difficult for the State to make laws which infringe on a person’s privacy. 

If a layperson was compelled to read this 547 page judgment, the first thing she would notice and in all likelihood feel awestruck by, is how vast the ambit of ‘privacy’ really is. 

The judgment talks about surveillance; freedom to choose and express one’s gender and sexuality; it talks about reproductive rights, the right of an unwed mother to notify the father about the existence of the child; about the freedom to eat and wear what one wants to; it talks about the balancing of community interests with individual freedom; asserts that the individual is at the forefront of the constitution. If this judgment was written in or was translated in Hindi the one word which would feature a lot would be – aazaadi. The court reiterated that certain rights inhere in individuals and are not a concession granted by the state or even the constitution of India. It reminded the government and all of us that one of the most critical freedoms is the freedom to be let alone (unless there is compelling interest such as commission of a crime of course). The court has almost consigned to garbage its cruel judgment holding that S. 377 of the Indian Penal Code criminalising ‘unnatural sex’ is constitutional. Sooner (hopefully) or later the Indian State will not be able to oppress anyone for expressing their sexuality.

My favorite and rather timely bit given the times we are living in and the propaganda we are suffering is the following excerpt from the judgment: 

We are unable to agree with the contention that in order to build a welfare State, it is necessary to destroy some of the human freedoms. That, at any rate is not the perspective of our Constitution. Our Constitution envisages that the State should without delay make available to all the citizens of this country the real benefits of those freedoms in a democratic way. 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 court warns us that ‘freedom of the home’ or of an individual must not however be construed as women being oppressed inside homes, even if they are ‘willing’ to suffer this oppression. Hopefully one day the court will criminalise marital rape as well.

The government of India argued that privacy is too vague a concept to be given any constitutional protection. That privacy is the concern of the elite. The Supreme Court demolished both these rather ridiculous and shameless arguments. I have earlier written in this paper about what a failure of the court to hold that privacy is a fundamental right could have entailed; what the argument that individual privacy must be sacrificed at the altar of community interest means- to use a few more examples, it means that a citizen can be compelled to carry a recorder in her pocket at all times to ensure that she does not commit any crime; for every room including bathrooms of your house to have cctvs to ensure you don’t beat up your family or consume drugs. That a cop should accompany each citizen at all times. I am making these examples to illustrate the fallacy in the argument: “Why do you want privacy if you have nothing to hide.” It is only the elite who can argue that the poor don’t need privacy.

There are many other things this judgment is a reminder of- how grateful we must be for the constitution of India; how we must remain suspicious of those who disrespect it; what happens when institutions like the judiciary do their job (even if belatedly). It has reminded us about a fact that the journalist Ravish Kumar recently made in a blog post- citizens must not dissolve into the state, must not blindly trust any government. That unless stopped in their tracks almost all governments go to any lengths to control citizens and deprive them of their freedoms. It illustrates the limits governments are willing to go to unless checked by institutions and citizens. 

While our dear leader had promptly tweeted about how the judgment outlawing triple talaq empowers muslim women, at the time of writing this piece there isn’t a whisper from him for the privacy judgment which protects women across religions in a far broader manner.

There was however more than a whisper from Ravishankar Prasad a Union Cabinet Minister about the judgment. He spoke a white lie and argued that in fact the government had never opposed privacy becoming a fundamental right. If this is true i) I am not sure what the government was resisting in court ii) The Supreme Court of India is lying iii) The Attorney General has acted against the government’s instructions and must be most embarrassed and in an awkward position now. I am grateful to Prasad however- he has done the most to demonstrate that the government is capable of speaking white lies. 

Today they are saying this, tomorrow they could say they have won the election even if they lose it (oh wait). A small bit of unsolicited advice for him- not everyone is good at speaking white lies. If the government was going to speak one they should have at least sent their best liar to bat for them. So far we haven’t heard from him on this.

An edited version of this post was first published in Mumbai Mirror

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Courts and religion. A very short story.

In a mythical land called supremistan, the following series of events happened. We begin, for obvious reasons, from the middle of the story.

C: No we don’t want to do this Article 13 business. All we want to talk about, is ERP. All five chant: *ERP! ERP!*.

L: But mygods, the constitution..

C: Boooooringggggg. Do you want to talk about ERP or not? We are ready to write judgment. My minion has taken out 377 quotes!

L: Sure mygod. ERP it is. So mygod this focus on ERP raises some preliminary jurisdictional issues.

C: Huh?

L: Yes. You see the book only recognises a,b,c and d sources of law. There is no mention of mygods. It appears that it is essential to the practice of this book that no one cares about anything a bunch of people sitting in something called Supremistan say. In fact, I think it is essential that supremistan and ummm the offices held by mygods cease to exist.

C: What nonsense. We are not at the mercy of this book. We only understand and interpret.. *awkward moment*.. oh.

L: Sorry mygods I think I have misunderstood. I think mygods said essential constitutional practice…?

C: Yes of course. Please proceed.