25/08/2017 9:50 AM IST | Updated 25/08/2017 9:56 AM IST

SC Quotes Amartya Sen To Answer Modi Government’s Claim That Privacy Is An Elitist Concern

Development needs fundamental rights.

'Facade of Supreme Court, India.'

The Supreme Court judgement declaring privacy a fundamental right quotes Nobel laureate Amartya Sen at length to rebut the Modi government's argument that privacy was an elitist concern, and the poor valued economic welfare over privacy.

"The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilized through history to wreak the most egregious violations of human rights," the nine-judge Constitutional bench observed.

"The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilized through history to wreak the most egregious violations of human rights."

The judgement goes on to elaborate that not just privacy, but no fundamental rights can be made subservient to socio-economic welfare. "The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected in the course of constitutional adjudication by this Court," the judges write.

The judgement goes on to explain that economic welfare cannot be achieved without fundamental rights. In other words, the poor need fundamental rights (including the right to liberty and privacy) to get the government to deliver social and economic welfare.

The judgement says social and economic welfare is often captured by the "rent-seeking behaviour" of those who are not entitled to those welfare benefits. For those who are being robbed of welfare benefits, they can claim them only by using fundamental rights enshrined in the Constitution.

The judges write, "Scrutiny of public affairs is founded upon the existence of freedom. Hence civil and political rights and socio-economic rights are complementary and not mutually exclusive. Some of these themes have been addressed in the writings of the Nobel laureate, Amartya Sen."

They quote from Sen's work to show that societies with stronger democratic rights are better placed to handle socio-economic crises than those with fewer rights.

The judges write: Sen's "analysis reveals that the political immunity enjoyed by government leaders in authoritarian states prevents effective measures being taken to address such conditions". They quote from his book, Development as Freedom:

"For example, Botswana had a fall in food production of 17 percent and Zimbabwe one of 38 percent between 1979-1981 and 1983-1984, in the same period in which the food production decline amounted to a relatively modest 11 or 12 percent in Sudan and Ethiopia. But while Sudan and Ethiopia, with comparatively smaller declines in food output, had massive famines, Botswana and Zimbabwe had none, and this was largely due to timely and extensive famine prevention policies by these latter countries.

Had the governments in Botswana and Zimbabwe failed to undertake timely action, they would have been under severe criticism and pressure from the opposition and would have gotten plenty of flak from newspapers. In contrast, the Ethiopian and Sudanese governments did not have to reckon with those prospects, and the political incentives provided by democratic institutions were thoroughly absent in those countries. Famines in Sudan and Ethiopia – and in many other countries in sub-Saharan Africa – were fed by the political immunity enjoyed by governmental leaders in authoritarian countries. This would seem to apply to the present situation in North Korea as well."

Hindustan Times via Getty Images
Nobel Laureate Economist Amartya Sen during an interview at Taj Mansingh Hotel on February 21, 2017 in New Delhi, India.

The historic judgement further elaborates: "In the Indian context, Sen points out that the Bengal famine of 1943 'was made viable not only by the lack of democracy in colonial India but also by severe restrictions on reporting and criticism imposed on the Indian press, and the voluntary practice of silence on the famine that the British-owned media chose to follow'".

Furthermore, "Political liberties and democratic rights are hence regarded as 'constituent components' of development. In contrast during the drought which took place in Maharashtra in 1973, food production failed drastically and the per capita food output was half of that in sub-Saharan Africa. Yet there was no famine in Maharashtra where five million people were employed in rapidly organised public projects while there were substantial famines in sub-Saharan Africa. This establishes what he terms as "the protective role of democracy".

Sen has analysed the issue succinctly:

"The causal connection between democracy and the nonoccurrence of famines is not hard to seek. Famines kill millions of people in different countries in the world, but they don't kill the rulers. The kings and the presidents, the bureaucrats and the bosses, the military leaders and the commanders never are famine victims.

And if there are no elections, no opposition parties, no scope for uncensored public criticism, then those in authority don't have to suffer the political consequences of their failure to prevent famines. Democracy, on the other hand, would spread the penalty of famines to the ruling groups and political leaders as well. This gives them the political incentive to try to prevent any threatening famine, and since famines are in fact easy to prevent (the economic argument clicks into the political one at this stage), the approaching famines are firmly prevented."

The judgement goes on to emphasize the link between development and freedom by quoting from Amartya Sen's article, 'The Country of First Boys':

"...development cannot really be seen merely as the process of increasing inanimate objects of convenience, such as raising the GNP per head, or promoting industrialization or technological advance or social modernization. These accomplishments are, of course, valuable – often crucially important – but their value must depend on what they do to the lives and freedoms of the people involved.

For adult human beings, with responsibility for choice, the focus must ultimately be on whether they have the freedom to do what they have reason to value. In this sense, development consists of expansion of people's freedom."