The first thing to know when talking about privacy in India is that a majority of the population does not always understand what it means. It is at times confused with shame. It’s also confused with the emotion we feel when we do something that does not meet our standards or our sense of what is right. Modern Indian languages do not seem to have an exact word which captures the meaning of privacy; they’re usually some variation of the words for isolation, intimacy or secrecy, once again hinting at a conceptual confusion. This explains the reactions of many who wonder what’s the big deal about privacy because they have nothing to hide from the government anyway.
Privacy, however, is not only about hiding something or keeping it secret. It is, at its core, the right to be left alone. It doesn’t mean that one is withdrawing from society. It is an expectation that society will not interfere in the choices made by the person so long as they do not cause harm to others. It means that one’s right to eat whatever one chooses, the right to drink what one chooses, the right to love and marry whom one chooses, to wear what one chooses, among others, are rights which the state cannot interfere with.
In a society where adults do not necessarily exercise most of these choices of their own free will (either because of family, caste or societal pressures), it is natural that the very concept of privacy seems incomprehensible. If you have grown up in a society where everything you do is dictated by someone else, and the cost of disobedience is high, to have the freedom to choose what you will in such important matters sounds like fantasy. But it is also a common misconception that the non-well-off in India do not know or care about privacy. Millions of men and women push back daily against the oppressive hold of their families and communities, and fight for the freedom to make their own choices. They may not have the right word for it, but they are creating space for themselves to exercise the right to privacy.
It is in this context that one must understand the hearings in the Supreme Court on the right to privacy. Although the nine-judge bench has been constituted to decide whether there is a fundamental right to privacy protected under the Constitution in the specific context of the Aadhaar case, privacy has many more dimensions than just data protection or surveillance by the state. A fundamental right to privacy, enshrined and protected in the Constitution, would mean that all persons have the right to be left alone by the state unless such intrusion is necessitated by a just, reasonable, and fair law.
The nine-judge bench was necessitated in the first place because while multiple judgements have held that there is common law right to privacy (claimed against other individuals and entities), there was doubt as to whether such a right could be claimed against government. Obviously, the Constitution does not use the word “privacy” or we wouldn’t be having these hearings. Where, then, does the right to privacy find a place in the Constitution?
To answer that it is necessary to go deep into what is meant by a fundamental right. At their core, such rights can be said to be the lines drawn by the Constitution delineating boundaries for the government’s actions. Such boundaries necessarily imply, the petitioners’ counsels have argued, that the Constitution guarantees that individuals have a right to be left alone by the state on matters of individual choice. They have argued that the earlier decisions in MP Sharma v Satish Chandra (1954) and Kharak Singh v State of UP (1962) were rendered relying on a narrow and pedantic interpretation of fundamental rights — an approach that has been discarded by the Supreme Court since the 1970s.
The Union government has argued that it does not think that the right to privacy is a fundamental right protected under the Constitution. Attorney General K.K. Venugopal has argued that while the right to privacy may be protected as a common law right or some element of it part of another fundamental right, by itself, it could not per se be guaranteed as a fundamental right. The arguments of the Union government and state governments supporting it have been premised on an “originalist” interpretation of the Constitution — that the framers never intended privacy to be a fundamental right available to citizens. Given the Supreme Court’s recent approach where it has not been hesitant to depart from the narrow interpretation of the Constitution when the situation demands it (such as appointment of judges), perhaps this approach may not find much judicial favour.
Far more worrisome is the argument that privacy is only the preserve of the well-off and the elite, and protecting it through law and legal institutions may stand in the way of “development” and poverty alleviation. This not only misunderstands what the right to privacy means but underplays its role in allowing individuals to make free choices. It is an argument of a paternalistic and patriarchal state that knows what’s good for you and won’t let you make your own choices. It also clashes with the ethos of a limited government enshrined in the Constitution.
A nine-judge bench of the Supreme Court holding that the Constitution guarantees a right to privacy will, however, only settle one issue — that there is a right to privacy guaranteed against state intervention. To what extent this right can be claimed and in what circumstances the state may be allowed to intrude will have to be decided on a case by case basis. At most, the court’s judgment may outline the principles on the basis of which judicial review will be carried out, but it cannot be expected to prescribe an answer for every foreseeable situation.
Whatever the final judgment, the implications will go far beyond just the Aadhar scheme and law. The law laid down by the Supreme Court on privacy could affect the course of development of the law governing reproductive rights, gay rights, beef bans, prohibition, among a host of other issues that the Indian state and society are grappling with.