I have not lived in India for 40 years. Yet the land of my birth can occasionally stun me with a step so spectacular that it leaves me breathless. The judgment by a nine-judge bench of the Supreme Court last August that privacy is a fundamental right in India, rooted in the Constitution, and fully enforceable, is one such occasion.
The fact that the judgment came on a reference from another case, that of a controversial personal identification rubric called Aadhaar, insensitively introduced and cavalierly administered, has largely tilted the reaction in terms of the fate of that measure. It is a pity, for the decision is a powerful testament, broad in vision and majestic in long-term impact. It deserves a more deliberate appraisal.
The Indian Constitution is a detailed document. Its table of contents is about the size of the US Constitution. Yet its long exegesis on fundamental rights, including rights such as the ones to life, liberty, speech and association, does not mention a right to privacy. Nor in the Directive Principles of State Policy that supposedly hover over the rights as a guide for decision makers does the word, privacy, occur once. It is tempting to conclude that the framers of the Constitution did not intend to include privacy among the enshrined rights. That is just what the judges concluded in the cases of M.P. Sharma and Kharak Singh. Now the Supreme Court has resoundingly repudiated that and said the opposite: the right to privacy is not only a fundamental right, but it is also embedded in the two most important provisions, the rights to life and liberty and, therefore, sacrosanct.
They have essentially argued that when the Constitution promises the right to life and liberty, it also assures a life of dignity and worth, and secures the liberty from feckless intrusion to pursue that life. Privacy is the magic ingredient without which both those rights become shells without substance. The judges have discarded the idea of 'originalism' (the framers' original concept is what matters) - a notion embraced by some US judges - and declared that the law has to evolve with society and recognize the intrusive edge of current technology. To boot, they analyse the framers' exchanges to prove that there was no intention to exclude privacy from fundamental rights.
What is this vaunted privacy? When I am in my home, nobody, not even a cop or a minister, can just walk in. Nobody can have my age, religion or phone number unless I want to give those out. I can decide what I eat, wear, read or listen to. I can choose with whom I talk, get friendly, sleep, marry or raise Cain without neighbours or bosses telling me that I am crossing limits. My car, my book, my song or even the shirt on my back the prime minister cannot take away unless I tell him/her. That is what privacy means.
It means, in the classic words of Justice L.D. Brandeis, the right to be let alone. I have the right to stay alone when I want to be. I have the right to have intimate relations, with whomever I choose, without having the intimacy violated by anyone. I have the right to remain anonymous in whatever I do, unless I wish to disclose my name. I have the right to reserve some aspects to myself, away from others' eyes, because they are personal or profane, shameful or sacred.
The judges have dramatically expanded the concept of privacy, citing leading authors like Anita Allen and Alan Westin. Justice Oliver Wendell Holmes used to say that a mind, stretched by a new idea, cannot return to its old dimensions. There is little doubt that the reach of fundamental rights in India, now energetically stretched by the supreme interpreters of the law, will not retract at the behest of any government. It is a fair guess, however, that try it will.
There are at least two reasons. The first is political. The inclination has long been to demand and secure a vast amount of information on any excuse, on some specious pretext of administrative necessity or State security. The biometric measures of Aadhaar are only the last and the most extreme example. There is little thought and less stringency to the safe preservation and cautious usage of such sensitive data in an era of rampant identity theft and dangerous data abuse.
The other is social. Few things are as clearly illustrative of our time-worn statutes, and the primitive mindset that lets them stand, as the continued criminalization of same-sex and trans-sex relationships. The legislature has done little to update the laws that reinforce old myths and prejudices, and it is a near-certainty that the executive enforcement will start coming up against judges whom the current decision will force to say a ringing, unhesitating, 'No'.
