PRIVACY JUDGMENT TO OPEN FLOODGATES

The unintended but inevitable consequence of last week’s emphatic Supreme Court judgment on a citizen’s right to privacy is that it will open the floodgates of litigation. Some of these, such as the challenge to Aadhar and the assault on the archaic legislation criminalising homosexuality, were inbuilt into the Supreme Court case. These will now be tested against the principle of what constitutes “reasonable” intrusions into individual privacy by the state.

The Supreme Court didn’t deliver a libertarian judgment. It did not hold that individual privacy was to be treated as absolute. Nor for that matter, like on the issue of free speech, has it sanctioned the contemporary equivalent of the Hippie code of the 1960s—although it encourages its tolerance. It has merely reinforced the conventional Western—and at the same time, not very Indian— view that the individual is at the core of Indian nationhood. This is in direct conflict with the other communitarian facets of the Indian Constitution that accords generous space to caste, class, religion, region and gender. Each of these presupposes a community as the unit and implicitly contests the notion of absolute privacy.

The social caveats notwithstanding, the judgment is salutary insofar as it draws a Lakshman rekha for the state. This was necessary. For a very long time, and culminating in the Emergency, the state was viewed as something akin to a divine incarnation, blessed with absolute powers. During the Emergency, a politically compliant Supreme Court even conceded to the state the right over an individual’s life and freedom. Implied was the total denial of privacy of an individual. When ‘socialism’ was injected into the Preamble of the Constitution—and maybe even forms part of what some jurists construe as the ‘basic structure’ of the Constitution—the Indian polity accepted the notion of state supremacy over the individual.

Now, extracting a precise definition of socialism may be as daunting as having to choose between 57 varieties of Heinz, but there is little doubt that flirtations with different varieties of socialism had profound effects on the political mentalities of Indians. From the time the more innocent Indians regarded the state as the ‘ma-baap’ and was content to receive state benevolence and guidance to the time of Sonia Gandhi when the state became a milch cow and an object of entitlement politics, India has come a very long way.

The unanswered question is whether India has travelled the distance between a bloated state and the minimal state the judiciary appears to have prescribed? If there is some concern in the government over the larger implications of the judgment, it is not on account of some imaginary fascist designs being thwarted. Anyone with an acquaintance of the BJP and RSS ideological ecosystem would have learnt that the deification of the state is not remotely on its agenda. Neither for that matter is rampant individualism. What has preoccupied the conservative imagination is the notion of the community and its collective wisdom accumulated over the ages. The very notion of family values conflicts quite sharply with individual choice and individual privacy.

At the same time, politics as it has evolved in India is substantially based on the ability of the state to deliver welfare. Effective and efficient delivery ensures re-election of a government and incompetence and corruption contributes substantially to political defeat. The Narendra Modi government began its innings promising ‘minimum government’. Very early on it modified its tune to trying to ensure targeted, efficient and corruption free delivery of services. This objective was sought to be fulfilled through the use of technology. In time, Aadhar came to occupy a central role because it could ensure the targeted delivery of scarce resources. But Aadhar presupposes the right of the state to have the requisite data of individuals. It is by definitition anti-privacy for the simple reason that a welfare state and privacy cannot go hand in hand. To uphold the state’s right to be ignorant about its citizens and at the same time expect it to carry out its welfare obligations—after collecting taxes, which too presupposes an abhorrence of privacy—is unrealistic. I think even the Supreme Court judges knew that and which is why it left the window open for the reasonable violation of an absolute principle.

There are people in India that benefit enormously from the extension of the privacy principle. There are, for example, those who have made zero tax their business models. They would do anything to defeat the growing demands for tax compliance. Then there are those who have made fortunes out of siphoning the money successive governments have allocated to anti-poverty schemes. They have been hard hit by the growing success of targeted delivery to the legitimate beneficiaries. And there are those whose importance stems from creating a mood of restiveness among the poor out of government incompetence. These NGOs too want a hobbled and clueless state because their relevance in public life depends on dysfunctional governments.

The libertarians who came on TV last week to support the Supreme Court judgment won’t in all likelihood be supportive of crooks and charlatans. The most honourable of them simply want the government to safeguard the data it has collected. They are afraid of hackers and the growing menace of intrusive technology. These views must be respected and the government must move fast to both safeguard its information systems with fanatical zeal and at the same time bring a robust data protection legislation before Parliament.

There are legitimate concerns of some people that sought to clip the wings of the state. But there were also crooks and political operators who climbed on to the libertarian bandwagon in order to herald the return of a porous state. The intelligent thing would be to accommodate the former and persevere with booting out the latter from national life.

EFFECTIVE and efficient delivery ensures re-election of a government and incompetence and corruption contributes substantially to political defeat.The Modi government began its innings promising ‘minimum government’