SC’s privacy ruling brings hope to the marginalised

The revolutionary consequences of such a verdict are most evident for India’s LGBTQ community

As women, sexual minorities and other disadvantaged groups in our society know all too well, surveillance, only growing in the digital age, is essential to controlling people. Last Wednesday, the Supreme Court gave us one of the most important tools to fight back against such control: a nine-judge bench unanimously held that the right to privacy is a fundamental right, protected and upheld by the Indian constitution. Moreover, the court argued that this right needs to be protected also when a privacy concern is relevant only to a small minority. Plus, it noted explicitly that privacy is essential to guaranteeing people’s social and economic rights, rather than being a hurdle in the way of achieving social welfare.

For privacy advocates, the Supreme Court’s ruling will be a great boost to their arguments.

How much difference the court’s pronouncements will make on the ground will, however, depend on their implementation. Not surprisingly, and quite rightly so, the court has argued that the right to privacy is not absolute. Undoubtedly, the government, as the driving force behind this challenge to privacy as a fundamental right at the Supreme Court, will now try to make the most of possible grounds for restrictions of this right that have already been flagged in the verdict — including ‘legitimate state interest’ ‘social, moral and compelling public interest’, ‘safety of persons and the state’ and ‘national security’. We can only hope that the ruling’s strong and pervasive emphasis on the importance of privacy to the constitutional values of dignity and liberty for all will be taken into account when competing interests are being balanced in practice.

In aspects of its ruling, the Supreme Court could also have gone further. While it acknowledges repeatedly that technological changes continuously throw up new challenges for jurisprudence around privacy, it addresses current challenges only in a limited way. For example, in its discussions of what it calls ‘informational’ privacy, it seems to reason that big data is merely a challenge of data protection. But as feminist academic Irma van der Ploeg has asked, where bodily searches are increasingly replaced by searches of data about our bodies (biometrics, DNA), often repeated over and over again, how valid is the line that we draw traditionally between our body and information about our body? If bodily searches are subject to higher privacy standards, shouldn’t similar standards apply to body data as well? We hope that the court will take into account such paradigm shifts when the time for implementation comes.

For now, however, especially for those most vulnerable to control by others, the Supreme Court has certainly offered tremendous hope, most importantly by looking at privacy in a rounded way: the right does not only include the right to be left alone, the court noted repeatedly, but also to decision-making about personal life and to control information about oneself.

The potentially revolutionary consequences of such a reading are most evident where India’s LGBTQ community is concerned. While the court stops short of overruling an earlier Supreme Court verdict upholding section 377, it does make a strong case that a person’s sexual orientation falls integrally within the right to privacy.

But for many issues concerning women’s rights, too, the verdict has potentially far-reaching consequences.

To its credit, the Court explicitly covered feminist critiques of privacy that warn against the use of privacy as a shield to hide from view, and court trials, issues such as domestic violence. What it didn’t address are critiques that highlight how the privacy accorded to women is often restrictive, in that it frequently privileges a conception of privacy as bodily integrity – a bodily integrity centred around notions of morality and concerns about family reputation which ultimately constrain, rather than enhance, women’s autonomy. The examples from ancient Indian religious texts cited by Justice Sharad Arvind Bobde in his judgement, too, are in fact examples of this.

If this ruling will be implemented in a consistent manner, it may well pave the way for tremendous, positive social change.

WHILE THE COURT STOPS SHORT OF OVERRULING AN EARLIER VERDICT UPHOLDING SECTION 377, IT DOES MAKE A STRONG CASE THAT A PERSON’S SEXUAL ORIENTATION FALLS INTEGRALLY WITHIN THE RIGHT TO PRIVACY