Retro Fit: My Day Of Freedom

Truth, it is said, has a mind of its own, it always finds a way to emerge, breaking all the shackles imposed on it to restrain it. The echoes then are inherent in the question itself as we found out on Thursday. Again proving that life is not binary, it is full of zeroes and ones and so on. The numeric walks and keeps walking, it cannot be fettered or bottled. Justice Jasti Chelameswar summed up the landmark judgment on privacy by the unanimous nine member Constitution Bench on Thursday throwing into stark relief the fact that there was no dissent whatsoever: “Man is not a creature of the State. Life and liberty are not granted by the Constitution. [The] Constitution only stipulates the limitations on the power of the State to interfere with our life and liberty.” This set the tone and tenor of the verdict which, in many ways, was a mirror image of Article 21 enshrined in the Constitution which provides us with the Right to Life and Personal Liberty. It is a proud day for India and Indians for the Supreme Court has once again shown that it is the last man standing. It has stood up to the unceasing intrusion that Aadhaar was ushering in. Article 21 stipulates, “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” And this is inalienable, inviolable and intrinsic to the right to life.

 Setback for Aadhaar

The judgment is obviously a setback to the continuing and all encompassing Aadhaar usage which has now gone beyond social welfare schemes and is pretty much compulsory and mandatory for most things, from filing one's ITR to opening a bank account. Yes, it could be likened to being dry gulched. With lousy security protocols and innumerable data breaches, privacy through biometrics and Iris scans cannot be the self fulfilling prophecy that the government wants it to be. By forcing the citizenry to give a sample of their fingerprints and their Iris scan, privacy is being violated daily. The five-judge bench of the Supreme Court, which is concurrently hearing the Aadhaar case now, has a legal precedent to look at for privacy and fundamental rights which are inexorably intertwined are being challenged. Already issues relating to data security have led to an all round scare. Carping Cassandras argue that the ID card links enough data to create a full profile of a person's spending habits, friends, property they own and a treasure trove of other information. Aadhaar, when conceptualised, was set up to be a secure form of digital identification for citizens, one that they could use for government services. Over time, it became an identity card, one that was required for anything and everything.

The government's contention as represented by its most senior law officer, the Attorney General K. K. Venugopal went up in smoke –Privacy, even if assumed to be a fundamental right, consists of a large number of sub-species... It will be constitutionally impermissible to declare each and every instance of privacy a fundamental right. Privacy has varied connotations when examined from different aspects of liberties. Jargon, which the judges did not wrap their heads around with. If the SC wants to declare it a fundamental right, then it probably has to determine separately the various aspects of privacy and the extent of violation that could trigger a constitutional remedy. Instead, the court ordered that two earlier rulings by large benches that said privacy was not fundamental in 1954 (M P Sharma) and 1962 (Kharak Singh) now stood subsumed, and it declared privacy was "an intrinsic part of the right to life and liberty" and "part of the freedoms guaranteed" by the constitution.

Constitutional experts believe the judgment has a bearing on broader civil rights, and a law that criminalises homosexuality. The four-judge opinion authored by Justice D.Y. Chandrachud said, “Sexual orientation is an essential attribute of privacy.” Justice Kaul's opinion said, “One's sexual orientation is undoubtedly a matter of privacy.” Justice Chandrachud's particularly angry take on the Supreme Court's dismissal in its Section 377 judgment of the "so-called rights" of LGBT people made for rather satisfying reading. It also opens up challenges to anti-conversion laws and past judgments supporting them, for, as several opinions in this judgment state, belief is a matter of privacy. Legal eagles say the judgment will also have an impact on a ban on the consumption of beef in many states and alcohol in some states. In his personal conclusion, Justice Sanjay Kishan Kaul wrote privacy is a fundamental right and it protects the inner sphere of an individual from interference from both state and non-state actors and lets individuals make autonomous life choices. Justice Kaul wrote, “The privacy of the home must protect the family, marriage, procreation and sexual orientation.”

Ironically, the question
about the constitutional status of right to privacy arose in a bunch of petitions, led by retired high court judge K.S. Puttaswamy, which in 2012, challenged the UPA government’s decision to introduce the biometric data-enabled Aadhaar ID for citizens. The petitioners included the first Chairperson of the National Commission for Protection of Child Rights and Magsaysay awardee Shanta Sinha, feminist researcher Kalyani Sen Menon, and others. This question was referred to a five-judge Constitution bench on August 11, 2015. Like Banquo’s ghost returning to haunt Macbeth, this one will take some time to be digested and absorbed. What originated under UPA came back to bite a pushy BJP. For its implications and ramifications are far reaching. Bitter medicine cannot be thrust down my throat, until I ask for it when I am ailing.
sandeep.bamzai@mydigitalfc.com

Columnist: 
Sandeep Bamzai