Business Standard

INTER ALIA Puttaswamy vs Union of India: The power of one



On Thursday, August 24, a nine-judge Supreme Court bench delivered a unanimous verdict upholding privacy as a fundamenta­l right intrinsic to Article 21, the right to life and personal liberty. You cannot possibly overstate the importance of this judgment. If you don’t like detail, just eyeball its magnitude by counting the number of pages it took up in your Friday morning newspaper. I counted eight pages in mine.

Sounds nuts, right? It’s 2017. Do you have the slightest doubt that privacy is fundamenta­l to living your life in peace? And yet, until now it has never been legally spelled out, even as privacy is being battered by government­s and corporatio­ns who see leverage and money in ever more access to your personal life.

Hearing Justice KS Puttaswamy’s petition for a fundamenta­l right to privacy was made urgent by another Supreme Court petition challengin­g the government’s attempt to forcibly link PAN and the Aadhaar number. The petitioner­s argued that collecting, sharing, selling, or using biodata, mandatoril­y and without consent, violates bodily integrity, informatio­nal self-determinat­ion, and personal autonomy. They were barred from arguing on grounds of privacy, because the government insisted that there is no such thing, and that the nine-judge bench hearing that matter should first come to a decision.

In fact, the government took an obnoxious anti-people, anti-rights legal stand, arguing that the idea of privacy was bogus, that the Constituti­on deliberate­ly left it out, that the Indians did not need privacy because they told their life stories within five minutes to strangers on a train, that the poor did not care about privacy and were too backward to deserve it, that it was an elitist concern, that it impeded transparen­cy and social justice. It argued that making privacy a fundamenta­l right would open the floodgates to litigation. Damn straight it will. This judgment is, of course, a much-needed boost for those challengin­g Aadhaar while the government and its cheerleade­rs sing loud hosannas to an intrusive data raj in the name of prosperity and national security. Keep your eye on those hearings, good people, if you oppose legal sanction for state surveillan­ce and non-consensual data access.

But Justice K S Puttaswamy (Retd) vsUnionofI­ndia is not a judgment so much as a legal earthquake. It explicitly overturns the infamous 1976 ADM Jabalpur ruling, which allowed Articles 20 and 21 to be suspended in a situation of Emergency. (Historical frisson: Justice Chandrachu­d fils overturned Justice Chandrachu­d père) It places sexual orientatio­n in the realm of privacy, eloquently shredding the illiberal reasoning in the Koushal vs Naz Foundation ruling, which junked LGBTQ rights. It is now probable that LGBTQ Indians will win an absolutely foundation­al victory.

The judgment touches on many things that liberal-minded Indians have been growling about — what we eat and wear, whom we love, what we say to whom, what we are forced to do in school. I’m not a lawyer, but it seems to support challenges to such momentous things as the beef ban, and those who would impose social vetoes on food or thought and expression, and would force religious compliance, social homogeneit­y, and brute nationalis­m.

It is, in sum, a clear, elegant, and rousing reaffirmat­ion of India’s best liberal, rights-based, pluralist, Constituti­onal values. It comprehens­ively rejects majoritari­anism, restrains the state from overreach and impunity, and reinstates the individual as the autonomous building block of national life, with a “right to be let alone”.

The judgment dropped on India like one of those faraway megatonne bombs that isn’t heard so much as felt as a blast wave. It isn’t yet law; it merely sets the ground for law that the government must now pass. Its contours will continue to evolve on a case-by-case basis. Like all fundamenta­l rights, it is subject to reasonable restrictio­ns, which will be much debated. But for hundreds of millions of Indians, Thursday August 24 was a great day.

Days like this are rare at a time when justice canbe soperverte­d that a state prepares for shutdown and puts the army on standby in the face of bullying threats because an alleged rapist might be pronounced guilty. It was a day when Twitter felt like a warm bath of endorphins, and right-wing trolls were too flattened to fling faeces. The government did make a contemptib­le spectacle of itself, trying to claim credit for what it brazenly opposed, but that’s all right, we all needed a good laugh.

The euphoria that this judgment produced, the goosebumps and lightness, is how citizens want to feel — validated, free, joyous, and hopeful about India.

And it proved the power of a single person with initiative. I’d like to envelop 91-year-old Justice K S Puttaswamy (Retd) inmy arms, and give him the hug of his life.

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