Pandora’s Box or Multi-headed Hydra ?!

Source: The Hitavada      Date: 27 Aug 2017 09:52:36


In a rare unanimous verdict pronounced by nine judges, the Supreme Court recently ruled that privacy is a fundamental right that requires constitutional protection. No matter if this judgement would open a Pandora’s Box, it will be listed as a historic development in India’s constitutional journey. For, in a way, it seeks to place the individual over and above the collective, to grant him a right even over and above the right the State has in public affairs. Some day somebody is quite likely to rise and tell the State that his personal right overrides the collective and common interest. And when that happens, the Indian nation and its Government and its people and also its judiciary will have to sort that out. The unanimous verdict on privacy is a restatement of core constitutional principles. The Hitavada Editor Mr Vijay Phanshikar enlightens readers on the finer points of right to privacy.

 

THE ‘Compact Oxford Dictionary Thesaurus and Wordpower Guide’ lists ‘privacy’ as “a state in which one is not watched or disturbed by others”. And the nine-member bench of the Supreme Court, headed by Chief Justice Mr. J S Khehar has dealt exactly with this issue almost in a dictionary-like manner, coming with a landmark judgement that “Right to privacy” is a fundamental right to which every Indian citizen is privy. There is little doubt that this judgement will go a long distance in adding value to the critical place the human individual must have in the collective of human community. This judgement aims at guaranteeing the right of every individual to maintain privacy about himself, without any hindrance even from the State.

No matter if this judgement would open a Pandora’s Box, it will be listed as a historic development in India’s constitutional journey. For, in a way, it seeks to place the individual over and above the collective, to grant him a right even over and above the right the State has in public affairs. Some day somebody is quite likely to rise and tell the State that his personal right overrides the collective and common interest. And when that happens, the Indian nation and its Government and its people and also its judiciary will have to sort that out.

Of course, even if the nation’s elite are celebrating this new metaphor of individual liberty and the new meaning of personal liberty and space, it is also becoming silently aware of the very many plausible twists and turns the future trajectory of democratic thought might have to endure. For, at almost each step of the way, there is going to be a deep and multi-dimensional engagement of various shades of thought and opinion on what actually constitutes personal space, individual liberty and right to privacy.

Thus, there is no need at all to say with so much emphasis – as many are trying to do – on how the country’s highest judicial forum has delivered a tight slap on the Government that had submitted a considered opposition to the idea of entering ‘right to privacy’ as a fundamental right. It must be noted that the Government, per se, did not oppose the notion of right to privacy. It was out of a serious and genuine concern for personal space and individual liberty to have privacy as a necessary condition for spiritual growth that the Government had been passing legislation and introducing administration regulations to ensure that no instrument of the State can assail the personal space and the details therein. Various laws and various court rulings do indicate this abiding concern of the State and its agencies and systems.

From this point of view, the State, as such, did not oppose the idea of right to privacy as fundamental right. What it intended to assert was its appropriate right – and also obligation — to help citizens to have a smooth tackling of administrative issues such various certificates based on official registers – like Birth and Death certificates, like the Income Tax Returns! It is out of a shared concern on this count that even the courts also supported the concept of Unique Identification Number – ‘Aadhar’ – to buttress the Government’s effort to streamline the smooth transfer of personal data based on official register.

When that was happening, the Government, as also various agencies such as banks and financial institutions, started noticing that people were willing to share a lot of personal data with agencies with express commercial engagements. They would ask for pan account numbers and even one-time-passwords (OTPs) from people to move things, which the people complied with absolutely willingly.
That became another official concern as news kept pouring in that countless people were getting cheated and duped just because they handed over their personal details to agencies with suspect intentions. And so began the practice of time to time word of caution from banks and Government to people on their cell-phones urging them not to share their data with anybody.

Yet, even as news came in about people being duped, the people also noticed the high fidelity of the Government system to the cause of protecting their personal details at any cost. Just in order to ensure this security, the Government websites that handled various data even went bust due to overload, resulting in news headlines such as “IT Department Website crashes” as people rushed in to file their I-T Returns before the closure date.

This was followed by the effort to redefine ‘privacy’. As the courts got engaged in the effort, various definitions, mostly purely intellectual in nature without much practical support, got pushed into the process. The landmark judgement of the honourable Supreme Court was an outcome of this process. And the moment the judgement was out, Devil’s Advocates started crying out that the apex court had delivered a tight slap on the Government’s face for its attempt to usurp personal data of people. They never realised that it was the Government and its agencies that were giving the people their UINs etc and all it was asking for was an omnibus linking of all the details under a common umbrella to facilitate all transactions, financial or administrative.

Nothing could be more unfortunate than this. Let alone this, the nation will by and by wake up to another grey zone, another slippery pitch, another catch-22 possibility. We are quite likely to have many people rising in revolt about their screwed up definitions of privacy. They may seek protection of many self-defined liberties as matters of privacy and personal space.

For example, a citizen Y might say that he would like to store anti-India literature in his home as a matter of his right to privacy. Yet another person Z might even assert that he could indulge in unnatural acts in his personal life and would need that freedom to be protected under the right to privacy regime. A Professor Saibaba might seek protection under the privacy regime when he stores a lot of literature that preaches revolt against the lawfully formed Government of a constitutionally, historically and morally established State of India.

Can the new consideration grant such freedoms to individuals who feel that the community interests are subservient to their personal liberty? No, that can never be allowed!That was the reason why Mr. Justice D.Y. Chandrachud said in his personal judgement-statement that larger national or societal interests were more critical than some individual’s brazenness to abuse privacy as a vile shield. There are countless constitutional experts and legal luminaries who, too, are raising similar objections and are stressing that a blanket privacy regime cannot be made operational blindly.

The sum total of their argument is that because of this new consideration now to fore, the nation’s systems of governance and judiciary will have to keep deciding issues on case-by-case basis. It is obvious that process will tear apart lots of set arguments and establish a new idea each time, offering the lawyers’ community much opportunity to bask in the sunshine of a plethora of litigations. Otherwise, too, questions are based traditionally in law exams for decades on how the Indian legal spread and constitutional arena are lawyers’ paradise. One more dimension of newer opportunities would get added to that reality.

All the legal thought across the world has addressed itself more to the collective good rather than personal wish overriding it. The entire legal philosophy has given a greater importance to national interests as against some individual’s absurd desire to be given a primacy in a brazen manner. Taking simple and close-to-ground example, we can prove this point: When the civic authorities seek to widen a road, they claim the private land as well that lines the street under proposed widening. Under the right to privacy regime, even one single individual can stall any road-widening programme endlessly and even shamelessly. Stretching this idea more, we may even arrive at a conclusion that the Law of Slander will have to be scrapped because in privacy, I can say anything to and about anyone and get away with it even if I am proved guilty of having caused slander to that person. (True that many people are already asking to scrap the Laws of Slander and Defamation and also Contempt of Court as they are proving hugely dysfunctional. Yet, the society has used those laws fairly effectively on countless occasions.)

Various other issues would also come up as multi-headed hydra whose ferociousness will have to be assimilated and digested each time a conflict of issues comes up under the privacy regime. For, if we chop one head, then other heads would raise themselves, daring us and our patience.
Now that the honourable Supreme Court’s nine-member bench has ruled that Right to Privacy is a fundamental right, the nation has to get going with it, in full readiness to tackle the countless issues that would get thrown up in the legal, constitutional, moral and spiritual churning as cream or scum. How to do the sifting of the cream and the scum will depend upon how fast our society raises its bar of maturity – beyond brazen politics and beyond pseudo-intellectualism that have often dominated our public discourse in the past one hundred or so years covering time before and after Independence.
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