What an absolutely historic day! Nine judges of the Supreme Court of India ruled that privacy is a fundamental right. To say that this judgment would have far-reaching effects for the future would be underselling it. The court seems to have explored every nook and cranny in their thick 547-page judgment, ranging from surveillance to big data to sexual orientation to the nature of our Constitution and how it defines fundamental rights.
Here's a sample to show you the flair with which the judgment has been written:
"The document [Indian Constitution] itself, though inked in a parched paper of timeless value, never grows old. Its ideals and values forever stay young and energetic, forever changing with the times. It represents the pulse and soul of the nation and like a phoenix, grows and evolves, but at the same time remains young and malleable."
Hat tip to Justice Sanjay Kishan Kaul for expressing his thoughts with such flourish!
This judgment was made after the Government challenged the citizens' fundamental right to privacy after petitioners pointed out Aadhaar violates that right. Think of this case as an umbrella to protect a person from incoming rain. The Aadhaar case is separate, like a raincoat, to protect the citizen from getting splashed sideways. While we now have a proverbial umbrella to save us from the torrential rain, we are yet to get our raincoat.
A separate bench will deal with whether or not Aadhaar violates our newly reinstated right to privacy. Based on my limited and quick reading of the judgment (#NotALawyer), I feel we should be optimistic about it, but cautiously: The reasonable restrictions, which accompany every fundamental right, were not exactly spelt out in this judgment.
The right to privacy, in an Indian context, has raised a lot of eyebrows and continues to do so. Arguments like "I have nothing to hide, so why need privacy?" and "Oh, it's all a western concept. Indians have no sense of privacy!" are being thrown around a lot. The reason why these arguments were being brought up, in my opinion, is because we do not have a clear concept of privacy in general.
Growing up in a joint family, devoid of any physical private space, it took me while to grasp my head around what privacy actually means. Parents peeping into their kids' personal diary and checking their text messages to see what we are upto ("OMG, are you having an affair?! Focus on your studies boy!") is a common occurrence. If you go lower down the socio-economic ladder and consider people who live in tiny slum houses, where space constraints are stretched to the max, it would be even more difficult to explain the concept of privacy to them. It's hard to explain to a family of five who live in a one-room hut what privacy means.
But because we have no clear concept of what it means or how significant it is, is it wrong to even ask for such a right? Clearly not. And the SC has reasoned it out in its thick judgment today.
I've had arguments with a dear lawyer friend, who also played a role in fighting this case, about the approach to be taken in order to bring about social change. I believe there are two ways in which social change is set in motion: Top-down and bottom-up.
The bottom-up approach would be when the collective human consciousness evolves, the environment forces them to change their behaviour and adapt. Following which, laws are changed to suit this new, evolved society.
The top-down approach would be when laws are made first, acknowledged by the courts, and then the society changes accordingly. What we are witnessing today is the latter. By giving legitimacy to the Right to Privacy, the Supreme Court has set in motion a social domino effect where citizens will now evolve and grow more comfortable with having their personal space (mental, physical and digital).
When Justice SK Kaul said the Constitution is an ever-changing, ever-evolving young document, I read it as: Only a few people in India truly realise the importance of having the Right to Privacy or why they need it to protect themselves from intrusive state and non-state actors. It's now time for the country as a collective to cherish this right, nurture it and use it to prevent losing its individuality.
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