The Supreme Court’s decision to examine if privacy can be made a fundamental right, while hearing the Aadhaar case, could not be better timed. Digitisation has made it possible to leverage personal data in unprecedented ways. Besides, there are concerns that Indian society is now subject to pervasive invasions of privacy, in which citizens are being told what to eat, how to dress, whom to respect or oppose, what to believe and how to articulate it. A line must be drawn against intrusive, prescriptive behaviour before it is normalised. The government’s stand against privacy as a fundamental right is regressive.
In the US, the line was drawn in the 19th century in response to yellow journalism. The better part of a century later, it was laid down anew in landmark cases like Roe vs Wade. Europe cracked down in the 21st century, in response to the growth of the internet, threatening corporates which could not protect client data with massive fines. And the question of privacy can be traced back to the “castle doctrine” of English common law, named for the libertarian conviction that an Englishman’s home was his castle. The world offers India several precedents, and the Supreme Court need not stop at building a castle. The Aadhaar case offers it an opportunity to build a fortress, in which one-seventh of humanity can be assured of dignity and liberty. In practice, we have grown accustomed to the right to privacy. It is too late to set the clock back. Instead, the Supreme Court must now set the right to privacy in stone for all time.
The recognition of privacy as a fundamental right would have welcome ramifications. Its direct impact would be felt by Aadhaar — no more citizen data leaks would be tolerated, irrespective of whether Aadhaar’s security was breached. Section 377 of the Indian Penal Code would become toothless, because who has relationships with whom would be their private affair. Bans on beef and alcohol would collapse, for consumption in private would be inviolable, irrespective of majoritarian dietary preferences. The cow protection racketeers would be on the defensive. And mass random snooping on electronic communications would be a punishable act. Communications providers could no longer be pressured into sharing encryption keys with the government. Only legitimate suspects would remain valid targets of eavesdropping, as individuals rather than groups, and after due process. The government has argued against privacy in its own interest. Now, it is for the court to rule in favour of the public interest.